EXHIBIT 4.1
FORM OF POOLING AND SERVICING AGREEMENT
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
[NAME OF TRUSTEE],
TRUSTEE
[NAME OF MASTER
SERVICER AND SECURITIES ADMINISTRATOR], MASTER SERVICER AND
SECURITIES ADMINISTRATOR
and
[NAME OF MORTGAGE LOAN SELLER] MORTGAGE LOAN SELLER
--------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of _______ 1 ,200_
--------------------------------------------------------------
Structured Asset Mortgage Investments II Inc.
______________ Trust, Mortgage Pass-Through Certificates
Series 200_-_
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TABLE OF CONTENTS
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ARTICLE I Definitions
2
ARTICLE II Conveyance of Mortgage Loans; Original Issuance of Certificates
35
Section 2.01
Conveyance of Mortgage Loans To
Trustee....................................................35
Section 2.02
Acceptance of Mortgage Loans by
Trustee....................................................38
Section 2.03
Assignment of Interest in the Mortgage Loan Purchase
Agreement.............................41
Section 2.04
Substitution of Mortgage
Loans.............................................................42
Section 2.05
Issuance of
Certificates...................................................................43
Section 2.06
Representations
and Warranties Concerning the
Depositor....................................43
Section 2.07
Purposes and Powers of the
Trust...........................................................44
ARTICLE III Administration and Servicing of Mortgage Loans
45
Section 3.01
Master
Servicer............................................................................45
Section 3.02
REMIC-Related
Covenants....................................................................46
Section 3.03
Monitoring of
Servicers....................................................................46
Section 3.04
Fidelity
Bond..............................................................................48
Section 3.05
Power to Act;
Procedures...................................................................48
Section 3.06
Due-on-Sale Clauses; Assumption
Agreements.................................................49
Section 3.07
Release of Mortgage
Files..................................................................49
Section 3.08
Documents, Records and Funds in Possession of Master Servicer to be
Held for Trustee.......50
Section 3.09
Standard Hazard Insurance and Flood Insurance
Policies.....................................50
Section 3.10
Presentment of Claims and Collection of
Proceeds...........................................51
Section 3.11
Maintenance of the Primary Mortgage Insurance
Policies.....................................51
Section 3.12
Trustee to Retain Possession of Certain Insurance Policies and
Documents...................52
Section 3.13
Realization Upon Defaulted Mortgage
Loans..................................................52
Section 3.14
Compensation for the Master
Servicer.......................................................52
Section 3.15
REO
Property...............................................................................53
Section 3.16
Annual Statement as to
Compliance..........................................................53
Section 3.17
Assessments of Compliance and Attestation
Reports..........................................54
Section 3.18
[Reserved].................................................................................55
Section 3.19
Payment to Mortgage Loan
Depositor.........................................................55
Section 3.20
UCC........................................................................................56
Section 3.21
Optional Purchase of Defaulted Mortgage
Loans..............................................56
Section 3.22
Surety
Bond................................................................................56
Section 3.23
Books and
Records..........................................................................57
ARTICLE IV Accounts
57
Section 4.01
Protected
Accounts.........................................................................57
Section 4.02
Master Servicer Collection
Account.........................................................59
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Section 4.03
Permitted Withdrawals and Transfers from the Master Servicer
Collection Account............60
Section 4.04
Distribution
Account.......................................................................60
Section 4.05
Permitted Withdrawals And Transfers From The Distribution
Account..........................61
ARTICLE V Certificates
63
Section 5.01
Certificates...............................................................................63
Section 5.02
Registration of Transfer and Exchange of
Certificates......................................71
Section 5.03
Mutilated, Destroyed, Lost Or Stolen
Certificates..........................................74
Section 5.04
Persons Deemed
Owners......................................................................75
Section 5.05
Transfer Restrictions on Residual
Certificates.............................................75
Section 5.06
Restrictions on
Transferability of
Certificates............................................76
Section 5.07
ERISA
Restrictions.........................................................................76
Section 5.08
Rule
144A
Information......................................................................78
ARTICLE VI Payments to Certificateholders
78
Section 6.01
Distributions on the
Certificates..........................................................78
Section 6.02
Allocation of
Losses.......................................................................82
Section 6.03
Payments...................................................................................83
Section 6.04
Statements to
Certificateholders...........................................................84
Section 6.05
Monthly
Advances...........................................................................86
Section 6.06
Compensating Interest
Payments.............................................................87
ARTICLE VII The Master Servicer
87
Section 7.01
Liabilities of
the Master
Servicer.........................................................87
Section 7.02
Merger or Consolidation of the Master
Servicer.............................................87
Section 7.03
Indemnification of the Trustee, the Master Servicer and the
Securities Administrator.......87
Section 7.04
Limitations on Liability of the Master Servicer and
Others.................................88
Section 7.05
Master Servicer Not to
Resign..............................................................89
Section 7.06
Successor Master
Servicer..................................................................89
Section 7.07
Sale
and Assignment of Master
Servicing....................................................90
Section 7.08
Reports Filed with Securities and Exchange
Commission......................................90
Section 7.09
Intention of the Parties and
Interpretation................................................93
ARTICLE VIII Default
93
Section 8.01
Events of
Default..........................................................................93
Section 8.02
Trustee to Act; Appointment of
Successor...................................................95
Section 8.03
Notification to
Certificateholders.........................................................96
Section 8.04
Waiver of
Defaults.........................................................................96
Section 8.05
List
of
Certificateholders.................................................................96
ARTICLE IX Concerning the Trustee and the Securities Administrator
96
Section 9.01
Duties of
Trustee..........................................................................96
Section 9.02
Certain Matters Affecting the Trustee and The Securities
Administrator.....................99
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Section 9.03
Trustee and Securities Administrator Not Liable for Certificates or
Mortgage Loans........100
Section 9.04
Trustee and Securities Administrator May Own
Certificates.................................101
Section 9.05
Trustee's and Securities Administrator's Fees and
Expenses................................101
Section 9.06
Eligibility Requirements for Trustee and Securities
Administrator.........................101
Section 9.07
Insurance.................................................................................102
Section 9.08
Resignation and Removal of the Trustee and Securities
Administrator.......................102
Section 9.09
Successor Trustee and Successor Securities
Administrator..................................103
Section 9.10
Merger or Consolidation of Trustee or Securities
Administrator............................104
Section 9.11
Appointment of Co-Trustee or Separate
Trustee.............................................104
Section 9.12
Federal
Information Returns and Reports to Certificateholders; Remic
Administration.......105
ARTICLE X Termination
107
Section 10.01
Termination Upon Repurchase by the Depositor or Its Designee or
Liquidation of the
Mortgage
Loans............................................................................107
Section 10.02
Additional
Termination
Requirements.......................................................109
ARTICLE XI Miscellaneous Provisions
110
Section 11.01
Intent of
Parties.........................................................................110
Section 11.02
Amendment.................................................................................110
Section 11.03
Recordation of
Agreement..................................................................111
Section 11.04
Limitation
on Rights of
Certificateholders................................................112
Section 11.05
Acts of
Certificateholders................................................................112
Section 11.06
GOVERNING
LAW.............................................................................113
Section 11.07
Notices...................................................................................114
Section 11.08
Severability of
Provisions................................................................114
Section 11.09
Successors
and
Assigns....................................................................114
Section 11.10
Article
and Section
Headings..............................................................114
Section 11.11
Counterparts..............................................................................114
Section 11.12
Notice to
Rating
Agencies.................................................................115
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EXHIBITS
Exhibit A-1
-
Form of Class [A] [X-A] Certificates
Exhibit A-2
-
Form of Class B Certificates
Exhibit A-3
-
Form of Class R Certificates
Exhibit B
-
Mortgage Loan Schedule
Exhibit C
-
[Reserved]
Exhibit D
-
Request for Release of Documents
Exhibit E
-
Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1
-
Form of Investment Letter
Exhibit F-2
-
Form of Rule 144A and Related Matters Certificate
Exhibit G
-
Form of Custodial Agreement
Exhibit H-1 to H-5 - Servicing
Agreements
Exhibit I
-
Assignment Agreements
iii
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Exhibit J
-
Mortgage Loan Purchase Agreement
Exhibit K
Form of Back-Up Certification
Exhibit L
Servicing Criteria to Be Addressed in Assessment of
Compliance
Exhibit M
Form 10-D, Form 8-K and Form 10-K Reporting
Responsibility
iv
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POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of _____ 1, 200_,
among
Structured Asset Mortgage Investments II Inc., a Delaware
corporation, as
depositor (the "Depositor"), [NAME OF TRUSTEE], a ______________
banking
corporation, not in its individual capacity but solely as trustee
(the
"Trustee"), [NAME OF MASTER SERVICER AND SECURITIES ADMINISTRATOR],
as master
servicer (in such capacity, the "Master Servicer") and as
securities
administrator (in such capacity, the "Securities Administrator"),
and [NAME OF
MORTGAGE LOAN SELLER] ("Mortgage Loan Seller").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the
Mortgage
Loans from the Mortgage Loan Seller. On the Closing Date, the
Depositor will
sell the Mortgage Loans and certain other property to the Trust
Fund and receive
in consideration therefor Certificates evidencing the entire
beneficial
ownership interest in the Trust Fund.
The Trustee on behalf of the Trust shall make an election for
the
assets constituting REMIC I to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC I Regular Interests will be
designated
"regular interests" in such REMIC and the Class R-I Certificate
will be
designated the "residual interest" in such REMIC.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC II Regular Certificates will
be designated
"regular interests" in such REMIC and the Class R-II Certificate
will be
designated the "residual interest" in such REMIC.
The Trustee on behalf of the Trust shall make an election for
the
assets constituting REMIC III to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC III Regular Certificates will
be designated
"regular interests" in such REMIC and the Class R-III Certificate
will be
designated the "residual interest" in such REMIC.
The Mortgage Loans will have an Outstanding Principal Balance as of
the
Cut-off Date, after deducting all Scheduled Principal due on or
before the
Cut-off Date, of approximately $____________. The initial principal
amount of
the Certificates will not exceed such Outstanding Principal
Balance.
In
consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the
Mortgage Loan
Seller and the Trustee agree as follows:
1
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases,
unless otherwise expressly provided or unless the context otherwise
requires,
shall have the meanings specified in this Article.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage
Loan,
as applicable, either (x) those customary mortgage servicing
practices of
prudent mortgage servicing institutions that master service
mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction
where the
related Mortgaged Property is located, to the extent applicable to
the Trustee
or the Master Servicer (except in its capacity as successor to a
Servicer), or
(y) as provided in the applicable Servicing Agreement, to the
extent applicable
to any Servicer, but in no event below the standard set forth in
clause (x).
ACCOUNT: The Master Servicer Collection Account and the
Protected
Account as the context may require.
ACCRUED CERTIFICATE INTEREST: For any Certificate for any
Distribution
Date, the interest accrued during the related Interest Accrual
Period at the
applicable Pass-Through Rate on the Current Principal Amount, or
Notional Amount
in the case of any Interest Only Certificate, of such Certificate
immediately
prior to such Distribution Date, on the basis of a 360-day year
consisting of
twelve 30-day months, less (i) in the case of a Senior Certificate,
such
Certificate's share of any Net Interest Shortfall from the related
Mortgage
Loans and, after the Cross-Over Date, the interest portion of any
Realized
Losses on the related Mortgage Loans allocated thereto in
accordance with
Section 6.02(g) and (ii) in the case of a Subordinate Certificate,
such
Certificate's share of any Net Interest Shortfall from the Mortgage
Loans and
the interest portion of any Realized Losses on the Mortgage Loans
allocated
thereto in accordance with Section 6.02(g).
ADDITIONAL COLLATERAL: (i) With respect to any Mortgage 100K Loan,
the
Securities Account and the financial assets held therein subject to
a security
interest pursuant to the related Mortgage 100K Pledge Agreement, or
(ii) with
respect to any Parent Power(R) Mortgage Loan, the related Parent
Power(R)
Agreement and collateral pledged pursuant thereto.
ADDITIONAL COLLATERAL AGREEMENTS: As defined in the Additional
Collateral Servicing Agreement.
ADDITIONAL COLLATERAL MORTGAGE LOAN: A Mortgage Loan that is
supported
by Additional Collateral.
ADDITIONAL COLLATERAL SERVICER: Either, (i) _________ or
__________, as
applicable, pursuant to the terms of the Additional Collateral
Servicing
Agreement, or (ii) the Master Servicer, pursuant to Section 3.01 of
this
Agreement.
ADDITIONAL COLLATERAL SERVICING AGREEMENT: The Additional
Collateral
Assignment and Servicing Agreement, dated as of ________ __, 200_,
between
_____________ and the Mortgage Loan Seller (whereby _________
retained its
rights to service the Additional Collateral in accordance
thereto).
2
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AFFILIATE: As to any Person, any other Person controlling,
controlled
by or under common control with such Person. "Control" means the
power to direct
the management and policies of a Person, directly or indirectly,
whether through
ownership of voting securities, by contract or otherwise.
"Controlled" and
"Controlling" have meanings correlative to the foregoing. The
Trustee may
conclusively presume that a Person is not an Affiliate of another
Person unless
a Responsible Officer of the Trustee has actual knowledge to the
contrary.
AGGREGATE EXPENSE RATE: With respect to any Mortgage Loan, the sum
of
the Servicing Fee Rate and the Lender-Paid PMI Rate (if
applicable).
AGREEMENT: This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
[NAME OF SERVICER] SERVICING AGREEMENT: With respect to the
Mortgage
Loans originated by _______, the Subservicing Agreement dated as of
________ __,
200_, between the Mortgage Loan Seller and _________, as attached
hereto as
Exhibit H-1.
ALLOCABLE SHARE: With respect to each Class of Subordinate
Certificates:
(a) as to any Distribution Date and amounts distributable pursuant
to
clauses (i) and (iv) of the definition of Subordinate Optimal
Principal Amount,
the fraction, expressed as a percentage, the numerator of which is
the Current
Principal Amount of such Class and the denominator of which is the
aggregate
Current Principal Amount of all Classes of the Subordinate
Certificates; and
(b) as to any Distribution Date and amounts distributable pursuant
to
clauses (ii), (iii) and (v) of the definition of Subordinate
Optimal Principal
Amount, and as to each Class of Subordinate Certificates (other
than the Class
of Subordinate Certificates having the lowest numerical designation
as to which
the Class Prepayment Distribution Trigger shall not be applicable)
for which (x)
the related Class Prepayment Distribution Trigger has been
satisfied on such
Distribution Date, the fraction, expressed as a percentage, the
numerator of
which is the Current Principal Amount of such Class and the
denominator of which
is the aggregate Current Principal Amount of all such Classes of
Subordinate
Certificates and (y) the related Class Prepayment Distribution
Trigger has not
been satisfied on such Distribution Date, 0%; provided that if on a
Distribution
Date, the Current Principal Amount of any Class of Subordinate
Certificates for
which the related Class Prepayment Distribution Trigger was
satisfied on such
Distribution Date is reduced to zero, any amounts distributed
pursuant to this
clause (b), to the extent of such Class's remaining Allocable
Share, shall be
distributed to the remaining Classes of Subordinate Certificates
which satisfy
the related Class Prepayment Distribution Trigger and to the Class
of
Subordinate Certificates having the lowest numerical designation in
reduction of
their respective Current Principal Amounts in the order of their
numerical Class
designations.
APPLICABLE CREDIT RATING: For any long-term deposit or security,
a
credit rating of AAA in the case of S&P or Fitch or Aaa in the
case of Moody's.
For any short-term deposit or security, or a rating of A-l+ in the
case of S&P
or Fitch or P-1 in the case of Moody's.
3
<PAGE>
APPLICABLE STATE LAW: For purposes of Section 9.12(d), the
Applicable
State Law shall be (a) the law of the State of New York and (b)
such other state
law whose applicability shall have been brought to the attention of
the
Securities Administrator and the Trustee by either (i) an Opinion
of Counsel
reasonably acceptable to the Securities Administrator and the
Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written
notice from the
appropriate taxing authority as to the applicability of such state
law.
APPRAISED VALUE: For any Mortgaged Property related to a Mortgage
Loan,
the amount set forth as the appraised value of such Mortgaged
Property in an
appraisal made for the mortgage originator in connection with its
origination of
the related Mortgage Loan.
ASSESSMENT OF COMPLIANCE: As defined in Section 3.17.
ASSIGNMENT AGREEMENTS: The agreements attached hereto as Exhibit
I,
whereby the Servicing Agreements were assigned to the Trustee for
the benefit of
the Certificateholders.
ASSIGNMENT OF PROPRIETARY LEASE: With respect to a Cooperative
Loan,
the assignment of the related Cooperative Lease from the Mortgagor
to the
originator of the Cooperative Loan.
ASSUMED FINAL DISTRIBUTION DATE: _______ __, 20__, or if such day
is
not a Business Day, the next succeeding Business Day.
ATTESTATION REPORT: As
defined in Section 3.17.
AVAILABLE FUNDS: With respect to any Distribution Date, the sum of
the
Group 1, Group 2, Group 3 and Group 4 Available Funds for such
Distribution
Date.
AVERAGE LOSS SEVERITY: With respect to any period and each Loan
Group,
the fraction obtained by dividing (x) the aggregate amount of
Realized Losses
for the related Mortgage Loans for such period by (y) the number of
related
Mortgage Loans which had Realized Losses for such period.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended
as
codified in 11 U.S.C. ss.ss. 101-1330.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any
Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan
as reported by
the applicable Servicer to the Master Servicer.
BOOK-ENTRY CERTIFICATES: Initially, all Classes of Certificates
other
than the Private Certificates and the Residual Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or
(ii) a
day on which the New York Stock Exchange or Federal Reserve is
closed or on
which banking institutions in the jurisdiction in which the
Trustee, the Master
Servicer, any Servicer or the Securities Administrator are
authorized or
obligated by law or executive order to be closed.
4
<PAGE>
CALENDAR QUARTER: January 1 to March 31, April 1 to June 30, July 1
to
September 30, or October 1 to December 31, as applicable.
[NAME OF SERVICER] SERVICING AGREEMENT: The Mortgage Loan Flow
Purchase, Sale and Servicing Agreement dated as of ________ __,
200_, among the
Mortgage Loan Seller (as purchaser) and ___________ and, with
respect to the
Mortgage Loans secured by Additional Collateral, the Additional
Collateral
Servicing Agreement, each as attached hereto as Exhibit H-2.
CERTIFICATE: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust Fund signed and
countersigned by the
Trustee in substantially the forms annexed hereto as Exhibits A-1,
A-2 and A-3
with the blanks therein appropriately completed.
CERTIFICATE GROUP: The Group 1 Senior Certificates, Group 2
Senior
Certificates, Group 3 Senior Certificates and Group 4 Senior
Certificates, as
applicable, and the Subordinate Certificates to the extent such
Certificates
represent an interest in such groups of Certificates.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its
nominee.
CERTIFICATE REGISTER: The register maintained pursuant to Section
5.02.
CERTIFICATEHOLDER: A Holder of a Certificate.
[NAME OF SERVICER] SERVICING AGREEMENT: The Purchase, Warranties
and
Servicing Agreement, dated as of _______ __, 200_ between the
Mortgage Loan
Seller and ________________, attached hereto as Exhibit H-3.
CLASS: With respect to the Certificates, I-A-1, I-X-A-1,
II-A-1,
II-X-A-1, III-A-1, III-X-A-1, IV-A-1, R-I, R-II, R-III, B-1, B-2,
B-3, B-4, B-5
and B-6.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: For a Class of
Subordinate
Certificates for any Distribution Date, the Class Prepayment
Distribution
Trigger is satisfied if the fraction (expressed as a percentage),
the numerator
of which is the aggregate Current Principal Amount of such Class
and each Class
of Subordinate Certificates subordinate thereto, if any, and the
denominator of
which is the Scheduled Principal Balance of all of the Mortgage
Loans as of the
related Due Date, equals or exceeds such percentage calculated as
of the Closing
Date.
CLASS R CERTIFICATES: The Class R-I, Class R-II and Class R-III
Certificates.
CLOSING DATE: ______ __, 200_.
CODE: The Internal Revenue Code of 1986, as amended.
CORRESPONDING CLASS: With respect to (i) REMIC II Regular
Interest
I-A-1, (ii) REMIC II Regular Interest II-A-1, (iii) REMIC II
Regular Interest
III-A-1, (iv) REMIC II Regular Interest IV-A-1, (v) REMIC II
Regular Interest
B-1, (vi) REMIC II Regular Interest B-2,
5
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(vii) REMIC II Regular Interest B-3, (viii) REMIC II Regular
Interest B-4, (ix)
REMIC II Regular Interest B-5, (x) REMIC II Regular Interest B-6,
and (xi) REMIC
II Regular Interest MT-R, (i) the Class I-A-1 Certificates, (ii)
the Class
II-A-1 Certificates, (iii) the Class III-A-1 Certificates, (iv) the
Class IV-A-
1 Certificates, (v) the Class B-1 Certificates, (vi) the Class B-2
Certificates,
(vii) the Class B-3 Certificates, (viii) the Class B-4
Certificates, (ix) the
Class B-5 Certificates, (x) the Class B-6 Certificates and (xi) the
Class R-III
Certificates, respectively.
COMPENSATING INTEREST PAYMENT: As defined in Section 6.06.
COOPERATIVE: A private, cooperative housing corporation which owns
or
leases land and all or part of a building or buildings, including
apartments,
spaces used for commercial purposes and common areas therein and
whose board of
directors authorizes, among other things, the sale of Cooperative
Stock.
COOPERATIVE APARTMENT: A dwelling unit in a multi-dwelling
building
owned or leased by a Cooperative, which unit the Mortgagor has an
exclusive
right to occupy pursuant to the terms of a proprietary lease or
occupancy
agreement.
COOPERATIVE LEASE: With respect to a Cooperative Loan, the
proprietary
lease or occupancy agreement with respect to the Cooperative
Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock,
which lease or
agreement confers an exclusive right to the holder of such
Cooperative Stock to
occupy such apartment.
COOPERATIVE LOAN: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment of the Cooperative Lease, (iv) financing statements and
(v) a stock
power (or other similar instrument), and ancillary thereto, a
recognition
agreement between the Cooperative and the originator of the
Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant
to Section
2.01 and are from time to time held as part of the Trust Fund.
COOPERATIVE STOCK: With respect to a Cooperative Loan, the
single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
COOPERATIVE STOCK CERTIFICATE: With respect to a Cooperative Loan,
the
stock certificate or other instrument evidencing the related
Cooperative Stock.
CORPORATE TRUST OFFICE: The office of the Trustee at which at
any
particular time its corporate trust business is administered, which
office, at
the date of the execution of this Agreement, is located at
__________________________.
[NAME OF SERVICER] SERVICING AGREEMENT: The Seller's Warranties
and
Servicing Agreement, dated as of _________ __, 200_, between the
Mortgage Loan
Seller and _______________, attached hereto as Exhibit H-4.
CROSS-OVER DATE: The first Distribution Date on which the
aggregate
Current Principal Amount of the Subordinate Certificates has been
reduced to
zero (giving effect to all distributions on such Distribution
Date).
6
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CURRENT PRINCIPAL AMOUNT: With respect to any Certificate (other
than
an Interest Only Certificate) as of any Distribution Date, the
initial principal
amount of such Certificate, and reduced by (i) all amounts
distributed on
previous Distribution Dates on such Certificate with respect to
principal, (ii)
the principal portion of all Realized Losses allocated prior to
such
Distribution Date to such Certificate, taking account of the Loss
Allocation
Limitation and (iii) in the case of a Subordinate Certificate,
such
Certificate's pro rata share, if any, of the applicable Subordinate
Certificate
Writedown Amount for previous Distribution Dates. With respect to
any Class of
Certificates (other than an Interest Only Certificate), the Current
Principal
Amount thereof will equal the sum of the Current Principal Amounts
of all
Certificates in such Class. Notwithstanding the foregoing, solely
for purposes
of giving consents, directions, waivers, approvals, requests and
notices, the
Class R-I, Class R-II and Class R-III Certificates after the
Distribution Date
on which they each receive the distribution of the last dollar of
their
respective original principal amount shall be deemed to have
Current Principal
Amounts equal to their respective Current Principal Amounts on the
day
immediately preceding such Distribution Date.
CUSTODIAL AGREEMENT: An agreement, dated as of the Closing Date
among
the Depositor, the Master Servicer, the Trustee and the Custodian
in
substantially the form of Exhibit G hereto.
CUSTODIAN: [NAME OF CUSTODIAN], or any successor custodian
appointed
pursuant to the provisions hereof and of the Custodial
Agreement.
CUT-OFF DATE: _________ 1, 200_.
CUT-OFF DATE BALANCE: $___________.
DEBT SERVICE REDUCTION: Any reduction of the Scheduled Payments
which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a
result of any
proceeding under the Bankruptcy Code or any other similar state law
or other
proceeding.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation
of
the Mortgaged Property by a court of competent jurisdiction in an
amount less
than the then outstanding indebtedness under the Mortgage Loan,
which valuation
results from a proceeding initiated under the Bankruptcy Code or
any other
similar state law or other proceeding.
DEPOSITOR: Structured Asset Mortgage Investments II Inc., a
Delaware
corporation, or its successors in interest.
DEPOSITORY: The Depository Trust Company, the nominee of which is
Cede
& Co., or any successor thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection
5.01(a)
hereof.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
7
<PAGE>
DESIGNATED DEPOSITORY INSTITUTION: A depository institution
(commercial
bank, federal savings bank, mutual savings bank or savings and loan
association)
or trust company (which may include the Trustee), the deposits of
which are
fully insured by the FDIC to the extent provided by law.
DETERMINATION DATE: With respect to each Mortgage Loan, the
Determination Date as defined in the related Servicing
Agreement.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United
States,
any State or political subdivision thereof, any possession of the
United States,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for the Freddie Mac or any successor thereto, a
majority of its
board of directors is not selected by such governmental unit), (ii)
any foreign
government, any international organization, or any agency or
instrumentality of
any of the foregoing, (iii) any organization (other than certain
farmers'
cooperatives described in Section 521 of the Code) which is exempt
from the tax
imposed by Chapter 1 of the Code (including the tax imposed by
Section 511 of
the Code on unrelated business taxable income), (iv) rural electric
and
telephone cooperatives described in Section 1381(a)(2)(C) of the
Code or (v) any
other Person so designated by the Trustee based upon an Opinion of
Counsel that
the holding of an ownership interest in a Residual Certificate by
such Person
may cause any REMIC contained in the Trust or any Person having an
ownership
interest in the Residual Certificate (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 Residual
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 ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated
"[NAME OF
TRUSTEE], as Trustee f/b/o holders of Structured Asset Mortgage
Investments II
Inc., [NAME OF SERIES], Mortgage Pass-Through Certificates, Series
200_-_ -
Distribution Account." The Distribution Account shall be an
Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to
each
Distribution Date.
DISTRIBUTION DATE: The 25th day of any month, beginning in the
month
immediately following the month of the Closing Date, or, if such
25th day is not
a Business Day, the Business Day immediately following.
DTC CUSTODIAN: ________________, or its successors in interest
as
custodian for the Depository.
DUE DATE: With respect to each Mortgage Loan, the date in each
month on
which its Scheduled Payment is due if such due date is the first
day of a month
and otherwise is deemed to be the first day of the following month
or such other
date specified in the related Servicing Agreement.
8
<PAGE>
DUE PERIOD: With respect to any Distribution Date and each
Mortgage
Loan, the period commencing on the second day of the month
preceding the month
in which the Distribution Date occurs and ending at the close of
business on the
first day of the month in which the Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) a segregated account maintained with
a
federal or state chartered depository institution (A) the
short-term obligations
of which are rated A-1 or better by Standard & Poor's and P-1
by Moody's at the
time of any deposit therein or (B) insured by the FDIC (to the
limits
established by such Corporation), the uninsured deposits in which
account are
otherwise secured such that, as evidenced by an Opinion of Counsel
(obtained by
the Person requesting that the account be held pursuant to this
clause (i))
delivered to the Trustee prior to the establishment of such
account, the
Certificateholders will have a claim with respect to the funds in
such account
and a perfected first priority security interest against any
collateral (which
shall be limited to Permitted Investments, each of which shall
mature not later
than the Business Day immediately preceding the Distribution Date
next following
the date of investment in such collateral or the Distribution Date
if such
Permitted Investment is an obligation of the institution that
maintains the
Distribution Account) securing such funds that is superior to
claims of any
other depositors or general creditors of the depository institution
with which
such account is maintained, (ii) a segregated trust account or
accounts
maintained with a federal or state chartered depository institution
or trust
company with trust powers acting in its fiduciary capacity or (iii)
a segregated
account or accounts of a depository institution acceptable to the
Rating
Agencies (as evidenced in writing by the Rating Agencies that use
of any such
account as the Distribution Account will not have an adverse effect
on the then-
current ratings assigned to the Classes of Certificates then rated
by the Rating
Agencies). Eligible Accounts may bear interest.
EQUITY ACCESS(R)MORTGAGE: As defined in the Additional
Collateral
Servicing Agreement.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EVENT OF DEFAULT: An event of default described in Section
8.01.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is
not
required by law to be paid to the related Mortgagor, the amount, if
any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage
Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan
and accrued
but unpaid interest at the related Mortgage Interest Rate through
the last day
of the month in which the related Liquidation Date occurs, plus
(ii) related
Liquidation Expenses.
FANNIE MAE: Federal National Mortgage Association or any
successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor
thereto.
FINAL CERTIFICATION: The certification substantially in the form
of
Exhibit Three to the Custodial Agreement.
FITCH: Fitch, Inc.
9
<PAGE>
FRACTIONAL UNDIVIDED INTEREST: With respect to any Class of
Certificates, the fractional undivided interest evidenced by any
Certificate of
such Class the numerator of which is the Current Principal Amount,
or Notional
Amount in the case of the Interest Only Certificates, of such
Certificate and
the denominator of which is the Current Principal Amount, or
Notional Amount in
the case of the Interest Only Certificates, of such Class. With
respect to the
Certificates in the aggregate, the fractional undivided interest
evidenced by
(i) a Residual Certificate will be deemed to equal 0.25%, (ii) an
Interest Only
Certificate will be deemed to equal 1.0% multiplied by a fraction,
the numerator
of which is the Notional Amount of such Certificate and the
denominator of which
is the aggregate Notional Amount of such respective Class and (iii)
a
Certificate of any other Class will be deemed to equal 96.25%
multiplied by a
fraction, the numerator of which is the Current Principal Amount of
such
Certificate and the denominator of which is the aggregate Current
Principal
Amount of all the Certificates.
FREDDIE MAC: Freddie Mac, formerly the Federal Home Loan
Mortgage
Corporation, or any successor thereto.
GLOBAL CERTIFICATE: Any Private Certificate registered in the name
of
the Depository or its nominee, beneficial interests in which are
reflected on
the books of the Depository or on the books of a Person maintaining
an account
with such Depository (directly or as an indirect participant in
accordance with
the rules of such depository).
[NAME OF SERVICER] SERVICING AGREEMENT: The Servicing Agreement,
dated
as of _____ _, 200_, as between the Mortgage Loan Seller and
______________, as
amended, attached hereto as Exhibit H-5.
GROSS MARGIN: As to each Mortgage Loan, the fixed percentage set
forth
in the related Mortgage Note and indicated on the Mortgage Loan
Schedule which
percentage is added to the related Index on each Interest
Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage
Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the
next Interest
Adjustment Date.
GROUP 1 AVAILABLE FUNDS, GROUP 2 AVAILABLE FUNDS, GROUP 3
AVAILABLE
FUNDS AND GROUP 4 AVAILABLE FUNDS: With respect to any Distribution
Date, an
amount equal to the aggregate of the following amounts with respect
to the
Mortgage Loans in the related Loan Group: (a) all previously
undistributed
payments on account of principal (including the principal portion
of Scheduled
Payments, Principal Prepayments and the principal portion of Net
Liquidation
Proceeds) and all previously undistributed payments on account of
interest
received after the Cut-off Date and on or prior to the related
Determination
Date, (b) any Monthly Advances and Compensating Interest Payments
by the
Servicers or the Master Servicer with respect to such Distribution
Date and (c)
any reimbursed amount in connection with losses on investments of
deposits in an
account, except:
(i) all payments that were due on or before the Cut-off Date;
(ii) all Principal Prepayments and Liquidation Proceeds received
after
the applicable Prepayment Period;
10
<PAGE>
(iii) all payments, other than Principal Prepayments, that
represent
early receipt of Scheduled Payments due on a date or dates
subsequent to the
related Due Date;
(iv) amounts received on particular Mortgage Loans as late payments
of
principal or interest and respecting which, and to the extent that,
there are
any unreimbursed Monthly Advances;
(v) amounts representing Monthly Advances determined to be
Nonrecoverable Advances;
(vi) any investment earnings on amounts on deposit in the
Master
Servicer Collection Account and the Distribution Account and
amounts permitted
to be withdrawn from the Master Servicer Collection Account and the
Distribution
Account pursuant to this Agreement;
(vii) amounts needed to pay the Servicing Fees or to reimburse
any
Servicer or the Master Servicer for amounts due under the
applicable Servicing
Agreement and the Agreement to the extent such amounts have not
been retained
by, or paid previously to, such Servicer or the Master
Servicer;
(viii) to pay any fees with respect to any lender-paid primary
mortgage
insurance policy; and
(ix) any expenses or other amounts reimbursable to the Trustee,
the
Securities Administrator and the Custodian pursuant to Section
7.04(c) or
Section 9.05.
GROUP 1 MORTGAGE LOANS: The Mortgage Loans identified as such on
the
Mortgage Loan Schedule.
GROUP 2 MORTGAGE LOANS: The Mortgage Loans identified as such on
the
Mortgage Loan Schedule.
GROUP 3 MORTGAGE LOANS: The Mortgage Loans identified as such on
the
Mortgage Loan Schedule.
GROUP 4 MORTGAGE LOANS: The Mortgage Loans identified as such on
the
Mortgage Loan Schedule.
GROUP 1 SENIOR CERTIFICATES: The Class I-A-1, Class I-X-A-1, Class
R-I,
Class R-II and Class R-III Certificates.
GROUP 2 SENIOR CERTIFICATES: The Class II-A-1 Certificates and
the
Class II-X-A-1 Certificates.
GROUP 3 SENIOR CERTIFICATES: The Class III-A-1 Certificates and
the
Class III-X-A-1 Certificates.
GROUP 4 SENIOR CERTIFICATES: The Class IV-A-1 Certificates.
11
<PAGE>
GROUP 1 SENIOR OPTIMAL PRINCIPAL AMOUNT, GROUP 2 SENIOR OPTIMAL
PRINCIPAL AMOUNT, GROUP 3 SENIOR OPTIMAL PRINCIPAL AMOUNT AND GROUP
4 SENIOR
OPTIMAL PRINCIPAL AMOUNT: With respect to each Distribution Date,
an amount
equal to the sum, without duplication, of the following (but in no
event greater
than the aggregate Current Principal Amounts of the Group 1, Group
2, Group 3
and Group 4 Senior Certificates, as applicable, immediately prior
to such
Distribution Date):
(i) the applicable Senior Percentage of the principal portion of
all
Scheduled Payments due on each Outstanding Mortgage Loan in the
related Loan
Group on the related Due Date as specified in the amortization
schedule at the
time applicable thereto (after adjustments for previous Principal
Prepayments
but before any adjustment to such amortization schedule by reason
of any
bankruptcy or similar proceeding or any moratorium or similar
waiver or grace
period);
(ii) the applicable Senior Prepayment Percentage of the
Scheduled
Principal Balance of each Mortgage Loan in the related Loan Group
which was the
subject of a Principal Prepayment in full received by the Master
Servicer during
the related Prepayment Period;
(iii) the applicable Senior Prepayment Percentage of all
Principal
Prepayments in part received by the Master Servicer during the
related
Prepayment Period with respect to each Mortgage Loan in the related
Loan Group;
(iv) the lesser of (a) the applicable Senior Prepayment Percentage
of
the sum of (A) all Net Liquidation Proceeds allocable to principal
received in
respect of each Mortgage Loan in the related Loan Group which
became a
Liquidated Mortgage Loan during the related Prepayment Period
(other than
Mortgage Loans described in the immediately following clause (B))
and (B) the
Scheduled Principal Balance of each such Mortgage Loan in the
related Loan Group
purchased by an insurer from the Trustee during the related
Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any,
or otherwise;
and (b) the applicable Senior Percentage of the sum of (A) the
Scheduled
Principal Balance of each Mortgage Loan in the related Loan Group
which became a
Liquidated Mortgage Loan during the related Prepayment Period
(other than the
Mortgage Loans described in the immediately following clause (B))
and (B) the
Scheduled Principal Balance of each such Mortgage Loan in the
related Loan Group
that was purchased by an insurer from the Trustee during the
related Prepayment
Period pursuant to the related Primary Mortgage Insurance Policy,
if any or
otherwise; and
(v) the applicable Senior Prepayment Percentage of the sum of (a)
the
Scheduled Principal Balance of each Mortgage Loan in the related
Loan Group
which was repurchased by the Mortgage Loan Seller in connection
with such
Distribution Date and (b) the excess, if any, of the Scheduled
Principal Balance
of a Mortgage Loan in the related Loan Group that has been replaced
by the
Mortgage Loan Seller with a substitute Mortgage Loan pursuant to
the Mortgage
Loan Purchase Agreement in connection with such Distribution Date
over the
Scheduled Principal Balance of such substitute Mortgage Loan.
GROUP 1 SENIOR PERCENTAGE: Initially, _____%. On any Distribution
Date,
the lesser of (i) 100% and (ii) the percentage (carried to six
places rounded
up) obtained by dividing the aggregate Current Principal Amount of
the Group 1
Senior Certificates (other than the Interest Only Certificates)
immediately
preceding such Distribution Date by the aggregate
12
<PAGE>
Scheduled Principal Balance of the Group 1 Mortgage Loans as of the
beginning of
the related Due Period.
GROUP 2 SENIOR PERCENTAGE: Initially, _____%. On any Distribution
Date,
the lesser of (i) 100% and (ii) the percentage (carried to six
places rounded
up) obtained by dividing the aggregate Current Principal Amount of
the Group 2
Senior Certificates (other than the Interest Only Certificates)
immediately
preceding such Distribution Date by the aggregate Scheduled
Principal Balance of
the Group 2 Mortgage Loans as of the beginning of the related Due
Period.
GROUP 3 SENIOR PERCENTAGE: Initially, _____%. On any Distribution
Date,
the lesser of (i) 100% and (ii) the percentage (carried to six
places rounded
up) obtained by dividing the aggregate Current Principal Amount of
the Group 3
Senior Certificates (other than the Interest Only Certificates)
immediately
preceding such Distribution Date by the aggregate Scheduled
Principal Balance of
the Group 3 Mortgage Loans as of the beginning of the related Due
Period.
GROUP 4 SENIOR PERCENTAGE: Initially, _____%. On any Distribution
Date,
the lesser of (i) 100% and (ii) the percentage (carried to six
places rounded
up) obtained by dividing the aggregate Current Principal Amount of
the Group 4
Senior Certificates immediately preceding such Distribution Date by
the
aggregate Scheduled Principal Balance of the Group 4 Mortgage Loans
as of the
beginning of the related Due Period.
GROUP 1 SENIOR PREPAYMENT PERCENTAGE: On any Distribution Date
occurring during the periods set forth below, as follows:
<TABLE>
<CAPTION>
Period (dates inclusive)
Group 1 Senior Prepayment Percentage
------------------------
------------------------------------
<S>
<C>
____ __, 200_ - _____ __, 20__
100%
Group 1 Senior Percentage plus __% of the Group 1 Subordinate
_____ __, 20__ - _____ __, 20__
Percentage
Group 1 Senior Percentage plus __% of the Group 1 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
Group 1 Senior Percentage plus __% of the Group 1 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
Group 1 Senior Percentage plus __% of the Group 1 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
____ __, 20__ - _____ __, 20__
Group 1 Senior Percentage
</TABLE>
In addition, no reduction of the Group 1 Senior Prepayment
Percentage
shall occur on any Distribution Date unless, as of the last day of
the month
preceding such Distribution Date, (A) the aggregate Scheduled
Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for
this purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed __%; and (B)
cumulative
Realized Losses on the Mortgage Loans do not exceed (a) __% of the
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including _____ 20__ and _____ 20__, (b) __% of the Original
Subordinate
Principal Balance if such Distribution Date occurs between and
including
13
<PAGE>
_____ 20__ and _____ 20__, (c) __% of the Original Subordinate
Principal Balance
if such Distribution Date occurs between and including _____ 20__
and _____
20__, (d) __% of the Original Subordinate Principal Balance if such
Distribution
Date occurs between and including _____ 20__ and _____ 20__, and
(e) __% of the
Original Subordinate Principal Balance if such Distribution Date
occurs during
or after _____ 20__.
In addition, if on any Distribution Date the current weighted
average
of the Subordinate Percentages for the Certificates is equal to or
greater than
two times the initial weighted average of the Subordinate
Percentages for the
Certificates, and (a) the aggregate Scheduled Principal Balance of
the Mortgage
Loans delinquent 60 days or more (including for this purpose any
such Mortgage
Loans in foreclosure and such Mortgage Loans with respect to which
the related
Mortgaged Property has been acquired by the Trust), averaged over
the last six
months, as a percentage of the aggregate Current Principal Amount
of the
Subordinate Certificates does not exceed __% and (b)(i) on or prior
to the
Distribution Date in ____ 200_ cumulative Realized Losses on the
Mortgage Loans
as of the end of the related Prepayment Period do not exceed __% of
the Original
Subordinate Principal Balance and (ii) after the Distribution Date
in ______
200_ cumulative Realized Losses on the Mortgage Loans as of the end
of the
related Prepayment Period do not exceed __% of the Original
Subordinate
Principal Balance, then, the Group 1 Senior Prepayment Percentage
for such
Distribution Date will equal the Group 1 Senior Percentage;
provided, however,
if on such Distribution Date the current weighted average of the
Subordinate
Percentages for the Certificates is equal to or greater than two
times the
initial weighted average of the Subordinate Percentages for the
Certificates on
or prior to the Distribution Date occurring in ______ 200_ and the
above
delinquency and loss tests are met, then the Group 1 Senior
Prepayment
Percentage for such Distribution Date will equal the Group 1 Senior
Percentage
plus __% of the Group 1 Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
Group 1
Senior Percentage exceeds the Group 1 Senior Percentage as of the
Cut-Off Date,
the Group 1 Senior Prepayment Percentage for such Distribution Date
will equal
100%. On the Distribution Date on which the Current Principal
Amounts of the
Group 1 Senior Certificates are reduced to zero, the Group 1 Senior
Prepayment
Percentage shall be the minimum percentage sufficient to effect
such reduction
and thereafter shall be zero.
GROUP 2 SENIOR PREPAYMENT PERCENTAGE: On any Distribution Date
occurring during the periods set forth below, as follows:
<TABLE>
<CAPTION>
Period (dates inclusive)
Group 2 Senior Prepayment Percentage
-------------------------------
----------------------------------------
<S>
<C>
____ __, 200_ - _____ __, 20__ 100%
_____ __, 20__ - _____ __, 20__ Group 2 Senior
Percentage plus __% of the Group 2 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 2 Senior
Percentage plus __% of the Group 2 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 2 Senior
Percentage plus __% of the Group 2 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 2 Senior
Percentage plus __% of the Group 2 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 2 Senior
Percentage
</TABLE>
14
<PAGE>
In addition, no reduction of the Group 2 Senior Prepayment
Percentage
shall occur on any Distribution Date unless, as of the last day of
the month
preceding such Distribution Date, (A) the aggregate Scheduled
Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for
this purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed __%; and (B)
cumulative
Realized Losses on the Mortgage Loans do not exceed (a) __% of the
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including _____ 20__ and _____ 20__, (b) __% of the Original
Subordinate
Principal Balance if such Distribution Date occurs between and
including _____
20__ and _____ 20__, (c) __% of the Original Subordinate Principal
Balance if
such Distribution Date occurs between and including _____ 20__ and
_____ 20__,
(d) __% of the Original Subordinate Principal Balance if such
Distribution Date
occurs between and including _____ 20__ and _____ 20__, and (e) __%
of the
Original Subordinate Principal Balance if such Distribution Date
occurs during
or after _____ 20__.
In addition, if on any Distribution Date the current weighted
average
of the Subordinate Percentages for the Certificates is equal to or
greater than
two times the initial weighted average of the Subordinate
Percentages for the
Certificates, and (a) the aggregate Scheduled Principal Balance of
the Mortgage
Loans delinquent 60 days or more (including for this purpose any
such Mortgage
Loans in foreclosure and such Mortgage Loans with respect to which
the related
Mortgaged Property has been acquired by the Trust), averaged over
the last six
months, as a percentage of the aggregate Current Principal Amount
of the
Subordinate Certificates does not exceed __% and (b)(i) on or prior
to the
Distribution Date in ____ 200_ cumulative Realized Losses on the
Mortgage Loans
as of the end of the related Prepayment Period do not exceed __% of
the Original
Subordinate Principal Balance and (ii) after the Distribution Date
in ______
200_ cumulative Realized Losses on the Mortgage Loans as of the end
of the
related Prepayment Period do not exceed __% of the Original
Subordinate
Principal Balance, then, the Group 2 Senior Prepayment Percentage
for such
Distribution Date will equal the Group 2 Senior Percentage;
provided, however,
if on such Distribution Date the current weighted average of the
Subordinate
Percentages for the Certificates is equal to or greater than two
times the
initial weighted average of the Subordinate Percentages for the
Certificates on
or prior to the Distribution Date occurring in ______ 200_ and the
above
delinquency and loss tests are met, then the Group 2 Senior
Prepayment
Percentage for such Distribution Date will equal the Group 2 Senior
Percentage
plus __% of the Group 2 Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
Group 2
Senior Percentage exceeds the Group 2 Senior Percentage as of the
Cut-Off Date,
the Group 2 Senior Prepayment Percentage for such Distribution Date
will equal
100%. On the Distribution Date on which the Current Principal
Amounts of the
Group 2 Senior Certificates are reduced to zero, the Group 2 Senior
Prepayment
Percentage shall be the minimum percentage sufficient to effect
such reduction
and thereafter shall be zero.
GROUP 3 SENIOR PREPAYMENT PERCENTAGE: On any Distribution Date
occurring during the periods set forth below, as follows:
15
<PAGE>
<TABLE>
<CAPTION>
Period (dates inclusive)
Group 3 Senior Prepayment Percentage
------------------------
------------------------------------
<S>
<C>
____ __, 200_ - _____ __, 20__
100%
Group 3 Senior Percentage plus __% of the Group 3 Subordinate
_____ __, 20__ - _____ __, 20__
Percentage
Group 3 Senior Percentage plus __% of the Group 3 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
Group 3 Senior Percentage plus __% of the Group 3 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
Group 3 Senior Percentage plus __% of the Group 3 Subordinate
____ __, 20__ - _____ __, 20__
Percentage
____ __, 20__ - _____ __, 20__
Group 3 Senior Percentage
</TABLE>
In addition, no reduction of the Group 3 Senior Prepayment
Percentage
shall occur on any Distribution Date unless, as of the last day of
the month
preceding such Distribution Date, (A) the aggregate Scheduled
Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for
this purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed __%; and (B)
cumulative
Realized Losses on the Mortgage Loans do not exceed (a) __% of the
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including _____ 20__ and _____ 20__, (b) __% of the Original
Subordinate
Principal Balance if such Distribution Date occurs between and
including _____
20__ and _____ 20__, (c) __% of the Original Subordinate Principal
Balance if
such Distribution Date occurs between and including _____ 20__ and
_____ 20__,
(d) __% of the Original Subordinate Principal Balance if such
Distribution Date
occurs between and including _____ 20__ and _____ 20__, and (e) __%
of the
Original Subordinate Principal Balance if such Distribution Date
occurs during
or after _____ 20__.
In addition, if on any Distribution Date the current weighted
average
of the Subordinate Percentages for the Certificates is equal to or
greater than
two times the initial weighted average of the Subordinate
Percentages for the
Certificates, and (a) the aggregate Scheduled Principal Balance of
the Mortgage
Loans delinquent 60 days or more (including for this purpose any
such Mortgage
Loans in foreclosure and such Mortgage Loans with respect to which
the related
Mortgaged Property has been acquired by the Trust), averaged over
the last six
months, as a percentage of the aggregate Current Principal Amount
of the
Subordinate Certificates does not exceed __% and (b)(i) on or prior
to the
Distribution Date in ____ 200_ cumulative Realized Losses on the
Mortgage Loans
as of the end of the related Prepayment Period do not exceed __% of
the Original
Subordinate Principal Balance and (ii) after the Distribution Date
in ______
200_ cumulative Realized Losses on the Mortgage Loans as of the end
of the
related Prepayment Period do not exceed __% of the Original
Subordinate
Principal Balance, then, the Group 3 Senior Prepayment Percentage
for such
Distribution Date will equal the Group 3 Senior Percentage;
provided, however,
if on such Distribution Date the current weighted average of the
Subordinate
Percentages for the Certificates is equal to or greater than two
times the
initial weighted average of the Subordinate Percentages for the
Certificates on
or prior to the Distribution Date occurring in ______ 200_ and the
above
delinquency and loss tests are met, then the Group 3 Senior
Prepayment
Percentage for such Distribution Date will equal the Group 3 Senior
Percentage
plus __% of the Group 3 Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
Group 3
Senior Percentage exceeds the Group 3 Senior Percentage as of the
Cut-Off Date,
the Group 3 Senior
16
<PAGE>
Prepayment Percentage for such Distribution Date will equal 100%.
On the
Distribution Date on which the Current Principal Amounts of the
Group 3 Senior
Certificates are reduced to zero, the Group 3 Senior Prepayment
Percentage shall
be the minimum percentage sufficient to effect such reduction and
thereafter
shall be zero.
GROUP 4 SENIOR PREPAYMENT PERCENTAGE: On any Distribution Date
occurring during the periods set forth below, as follows:
<TABLE>
<CAPTION>
Period (dates inclusive)
Group 4 Senior Prepayment Percentage
------------------------
------------------------------------
<S>
<C>
____ __, 200_ - _____ __, 20__ 100%
_____ __, 20__ - _____ __, 20__ Group 4 Senior
Percentage plus __% of the Group 4 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 4 Senior
Percentage plus __% of the Group 4 Subordinate Percentage
____ __, 20__ - _____ __, 20__ Group 4 Senior
Percentage plus __% of the Group 4 Subordinate Percentage
Group 4 Senior Percentage plus __% of the Group 4 Subordinate
____ __, 20__ - _____ __, 20__ Percentage
____ __, 20__ - _____ __, 20__ Group 4 Senior
Percentage
</TABLE>
In addition, no reduction of the Group 4 Senior Prepayment
Percentage
shall occur on any Distribution Date unless, as of the last day of
the month
preceding such Distribution Date, (A) the aggregate Scheduled
Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for
this purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed __%; and (B)
cumulative
Realized Losses on the Mortgage Loans do not exceed (a) __% of the
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including _____ 20__ and _____ 20__, (b) __% of the Original
Subordinate
Principal Balance if such Distribution Date occurs between and
including _____
20__ and _____ 20__, (c) __% of the Original Subordinate Principal
Balance if
such Distribution Date occurs between and including _____ 20__ and
_____ 20__,
(d) __% of the Original Subordinate Principal Balance if such
Distribution Date
occurs between and including _____ 20__ and _____ 20__, and (e) __%
of the
Original Subordinate Principal Balance if such Distribution Date
occurs during
or after _____ 20__.
In addition, if on any Distribution Date the current weighted
average
of the Subordinate Percentages for the Certificates is equal to or
greater than
two times the initial weighted average of the Subordinate
Percentages for the
Certificates, and (a) the aggregate Scheduled Principal Balance of
the Mortgage
Loans delinquent 60 days or more (including for this purpose any
such Mortgage
Loans in foreclosure and such Mortgage Loans with respect to which
the related
Mortgaged Property has been acquired by the Trust), averaged over
the last six
months, as a percentage of the aggregate Current Principal Amount
of the
Subordinate Certificates does not exceed __% and (b)(i) on or prior
to the
Distribution Date in ____ 200_ cumulative Realized Losses on the
Mortgage Loans
as of the end of the related Prepayment Period do not exceed __% of
the Original
Subordinate Principal Balance and (ii) after the Distribution Date
in ______
200_ cumulative Realized Losses on the Mortgage Loans as of the end
of the
related Prepayment Period do not exceed __% of the Original
Subordinate
Principal Balance, then, the Group 4
17
<PAGE>
Senior Prepayment Percentage for such Distribution Date will equal
the Group 4
Senior Percentage; provided, however, if on such Distribution Date
the current
weighted average of the Subordinate Percentages for the
Certificates is equal to
or greater than two times the initial weighted average of the
Subordinate
Percentages for the Certificates on or prior to the Distribution
Date occurring
in ______ 200_ and the above delinquency and loss tests are met,
then the Group
4 Senior Prepayment Percentage for such Distribution Date will
equal the Group 4
Senior Percentage plus __% of the Group 4 Subordinate
Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
Group 4
Senior Percentage exceeds the Group 4 Senior Percentage as of the
Cut-Off Date,
the Group 4 Senior Prepayment Percentage for such Distribution Date
will equal
100%. On the Distribution Date on which the Current Principal
Amounts of the
Group 4 Senior Certificates are reduced to zero, the Group 4 Senior
Prepayment
Percentage shall be the minimum percentage sufficient to effect
such reduction
and thereafter shall be zero.
GROUP 1 SUBORDINATE PERCENTAGE: On any Distribution Date, 100%
minus
the Group 1 Senior Percentage.
GROUP 2 SUBORDINATE PERCENTAGE: On any Distribution Date, 100%
minus
the Group 2 Senior Percentage.
GROUP 3 SUBORDINATE PERCENTAGE: On any Distribution Date, 100%
minus
the Group 3 Senior Percentage.
GROUP 4 SUBORDINATE PERCENTAGE: On any Distribution Date, 100%
minus
the Group 4 Senior Percentage.
GROUP 1 SUBORDINATE PREPAYMENT PERCENTAGE: With respect to the
Group 1
Mortgage Loans, on any Distribution Date, 100% minus the Group 1
Senior
Prepayment Percentage, except that on any Distribution Date after
the Current
Principal Amounts of the Group 1 Senior Certificates have each been
reduced to
zero, if (a) the weighted average of the Subordinate Percentages on
such
Distribution Date equals or exceeds two times the initial weighted
average of
the Subordinate Percentages and (b) the aggregate Scheduled
Principal Balance of
the Mortgage Loans delinquent 60 days or more (including for this
purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed 100%, the
Group 1
Subordinate Prepayment Percentage will equal 100%. If the test set
forth in the
preceding sentence is not satisfied on any Distribution Date after
the Current
Principal Amount of the Group 1 Senior Certificates have each been
reduced to
zero, then the Group 1 Subordinate Prepayment Percentage will equal
zero for
such Distribution Date.
GROUP 2 SUBORDINATE PREPAYMENT PERCENTAGE: With respect to the
Group 2
Mortgage Loans, on any Distribution Date, 100% minus the Group 2
Senior
Prepayment Percentage, except that on any Distribution Date after
the Current
Principal Amounts of the Group 2 Senior Certificates have each been
reduced to
zero, if (a) the weighted average of the Subordinate Percentages on
such
Distribution Date equals or exceeds two times the initial weighted
average of
the Subordinate Percentages and (b) the aggregate Scheduled
Principal
18
<PAGE>
Balance of the Mortgage Loans delinquent 60 days or more (including
for this
purpose any such Mortgage Loans in foreclosure and Mortgage Loans
with respect
to which the related Mortgaged Property has been acquired by the
Trust),
averaged over the last six months, as a percentage of the sum of
the aggregate
Current Principal Amount of the Subordinate Certificates does not
exceed 100%,
the Group 2 Subordinate Prepayment Percentage will equal 100%. If
the test set
forth in the preceding sentence is not satisfied on any
Distribution Date after
the Current Principal Amount of the Group 2 Senior Certificates
have each been
reduced to zero, then the Group 2 Subordinate Prepayment Percentage
will equal
zero for such Distribution Date.
GROUP 3 SUBORDINATE PREPAYMENT PERCENTAGE: With respect to the
Group 3
Mortgage Loans, on any Distribution Date, 100% minus the Group 3
Senior
Prepayment Percentage, except that on any Distribution Date after
the Current
Principal Amounts of the Group 3 Senior Certificates have each been
reduced to
zero, if (a) the weighted average of the Subordinate Percentages on
such
Distribution Date equals or exceeds two times the initial weighted
average of
the Subordinate Percentages and (b) the aggregate Scheduled
Principal Balance of
the Mortgage Loans delinquent 60 days or more (including for this
purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed 100%, the
Group 3
Subordinate Prepayment Percentage will equal 100%. If the test set
forth in the
preceding sentence is not satisfied on any Distribution Date after
the Current
Principal Amount of the Group 3 Senior Certificates have each been
reduced to
zero, then the Group 3 Subordinate Prepayment Percentage will equal
zero for
such Distribution Date.
GROUP 4 SUBORDINATE PREPAYMENT PERCENTAGE: With respect to the
Group 4
Mortgage Loans, on any Distribution Date, 100% minus the Group 4
Senior
Prepayment Percentage, except that on any Distribution Date after
the Current
Principal Amounts of the Group 4 Senior Certificates have each been
reduced to
zero, if (a) the weighted average of the Subordinate Percentages on
such
Distribution Date equals or exceeds two times the initial weighted
average of
the Subordinate Percentages and (b) the aggregate Scheduled
Principal Balance of
the Mortgage Loans delinquent 60 days or more (including for this
purpose any
such Mortgage Loans in foreclosure and Mortgage Loans with respect
to which the
related Mortgaged Property has been acquired by the Trust),
averaged over the
last six months, as a percentage of the sum of the aggregate
Current Principal
Amount of the Subordinate Certificates does not exceed 100%, the
Group 4
Subordinate Prepayment Percentage will equal 100%. If the test set
forth in the
preceding sentence is not satisfied on any Distribution Date after
the Current
Principal Amount of the Group 4 Senior Certificates have each been
reduced to
zero, then the Group 4 Subordinate Prepayment Percentage will equal
zero for
such Distribution Date.
HOLDER: The Person in whose name a Certificate is registered in
the
Certificate Register, except that, subject to Subsections 11.02(b)
and 11.05(e),
solely for the purpose of giving any consent pursuant to this
Agreement, any
Certificate registered in the name of the Depositor, the Master
Servicer or the
Trustee or any Affiliate thereof shall be deemed not to be
outstanding and the
Fractional Undivided Interest evidenced thereby shall not be taken
into account
in determining whether the requisite percentage of Fractional
Undivided
Interests necessary to effect any such consent has been
obtained.
19
<PAGE>
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, the
Custodian
and the Securities Administrator and their officers, directors,
agents and
employees and, with respect to the Trustee, any separate co-trustee
and its
officers, directors, agents and employees.
INDEPENDENT: When used with respect to any specified Person, this
term
means that such Person (a) is in fact independent of the Depositor
or the Master
Servicer and of any Affiliate of the Depositor or the Master
Servicer, (b) does
not have any direct financial interest or any material indirect
financial
interest in the Depositor or the Master Servicer or any Affiliate
of the
Depositor or the Master Servicer and (c) is not connected with the
Depositor or
the Master Servicer or any Affiliate as an officer, employee,
promoter,
underwriter, trustee, partner, director or person performing
similar functions.
INDEX: The index, if any, specified in a Mortgage Note by reference
to
which the related Mortgage Interest Rate will be adjusted from time
to time.
INDIVIDUAL CERTIFICATE: Any Private Certificate registered in the
name
of the Holder other than the Depository or its nominee.
INITIAL CERTIFICATION: The certification substantially in the form
of
Exhibit Kne to the Custodial Agreement.
INSTITUTIONAL ACCREDITED INVESTOR: Any Person meeting the
requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the
Securities Act or
any entity all of the equity holders in which come within such
paragraphs.
INSURANCE POLICY: With respect to any Mortgage Loan, any
standard
hazard insurance policy, flood insurance policy or title insurance
policy.
INSURANCE PROCEEDS: Amounts paid by the insurer under any
Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than
amounts
required to be paid over to the Mortgagor pursuant to law or the
related
Mortgage Note or Security Instrument and other than amounts used to
repair or
restore the Mortgaged Property or to reimburse insured
expenses.
INTEREST ACCRUAL PERIOD: With respect to each Distribution Date,
for
each Class of Certificates, the calendar month preceding the month
in which such
Distribution Date occurs.
INTEREST ADJUSTMENT DATE: With respect to a Mortgage Loan, the
date, if
any, specified in the related Mortgage Note on which the Mortgage
Interest Rate
is subject to adjustment.
INTEREST ONLY CERTIFICATES: The Class I-X-A-1, Class II-X-A-1 and
Class
III-X-A-1 Certificates.
INTEREST SHORTFALL: With respect to any Distribution Date and
each
Mortgage Loan that during the related Prepayment Period was the
subject of a
Principal Prepayment or constitutes a Relief Act Mortgage Loan, an
amount
determined as follows:
(a) Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one month's interest
at the
applicable Net Rate on the amount of such
20
<PAGE>
prepayment and (ii) the amount of interest for the calendar month
of such
prepayment (adjusted to the applicable Net Rate) received at the
time of such
prepayment;
(b) Principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one month's interest
at the
applicable Net Rate on the Scheduled Principal Balance of such
Mortgage Loan
immediately prior to such prepayment and (ii) the amount of
interest for the
calendar month of such prepayment (adjusted to the applicable Net
Rate) received
at the time of such prepayment; and
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage Loan,
the
excess of (i) 30 days' interest (or, in the case of a principal
prepayment in
full, interest to the date of prepayment) on the Scheduled
Principal Balance
thereof (or, in the case of a principal prepayment in part, on the
amount so
prepaid) at the related Net Rate over (ii) 30 days' interest (or,
in the case of
a principal prepayment in full, interest to the date of prepayment)
on such
Scheduled Principal Balance (or, in the case of a Principal
Prepayment in part,
on the amount so prepaid) at the Net Rate required to be paid by
the Mortgagor
as limited by application of the Relief Act.
INTERIM CERTIFICATION: The certification substantially in the form
of
Exhibit Two to the Custodial Agreement.
INVESTMENT LETTER: The letter to be furnished by each
Institutional
Accredited Investor which purchases any of the Private Certificates
in
connection with such purchase, substantially in the form set forth
as Exhibit
F-1 hereto.
LENDER-PAID PMI RATE: With respect to each Mortgage Loan covered by
a
lender-paid primary mortgage insurance policy, the amount payable
to the related
insurer, as stated in the Mortgage Loan Schedule.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which
the
related Servicer or the Master Servicer has determined that all
amounts it
expects to recover from or on account of such Mortgage Loan have
been recovered.
LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan,
the
date on which the Master Servicer or the related Servicer has
certified that
such Mortgage Loan has become a Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in
liquidation,
unreimbursed expenses paid or incurred by or for the account of the
Master
Servicer or the related Servicers in connection with the
liquidation of such
Mortgage Loan and the related Mortgage Property, such expenses
including (a)
property protection expenses, (b) property sales expenses, (c)
foreclosure and
sale costs, including court costs and reasonable attorneys' fees,
and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
LIQUIDATION PROCEEDS: Cash received in connection with the
liquidation
of a defaulted Mortgage Loan, whether through trustee's sale,
foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise, plus, with
respect to a
defaulted Mortgage Loan that is an Additional Collateral Mortgage
Loan, the
amount realized on the related Additional Collateral with respect
to such
Mortgage Loan in accordance with the provisions of the
Additional
21
<PAGE>
Collateral Servicing Agreement. Liquidation Payments shall also
include any
Required Surety Payment.
LOAN GROUP: Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group
4,
as applicable.
LOAN GROUP 1: The group of Mortgage Loans designated as belonging
to
Loan Group 1 on the Mortgage Loan Schedule.
LOAN GROUP 2: The group of Mortgage Loans designated as belonging
to
Loan Group 2 on the Mortgage Loan Schedule.
LOAN GROUP 3: The group of Mortgage Loans designated as belonging
to
Loan Group 3 on the Mortgage Loan Schedule.
LOAN GROUP 4: The group of Mortgage Loans designated as belonging
to
Loan Group 4 on the Mortgage Loan Schedule.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, the
fraction,
expressed as a percentage, the numerator of which is the original
principal
balance of the related Mortgage Loan and the denominator of which
is the
Original Value of the related Mortgaged Property.
LOSS ALLOCATION LIMITATION: The meaning specified in Section
6.02(c)
hereof.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
MASTER SERVICER: As of the Closing Date, [NAME OF MASTER SERVICER]
and,
thereafter, its respective successors in interest who meet the
qualifications of
the Servicing Agreements and this Agreement.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or
accounts
created and maintained pursuant to Section 4.02, which shall be
denominated
"[NAME OF TRUSTEE], as Trustee f/b/o holders of Structured Asset
Mortgage
Investments II Inc., [NAME OF SERIES], Mortgage Pass- Through
Certificates,
Series ____-_ - Master Servicer Collection Account." The Master
Servicer
Collection Account shall be an Eligible Account.
MASTER SERVICING COMPENSATION: The meaning specified in Section
3.14.
MAXIMUM LIFETIME MORTGAGE RATE: The maximum level to which a
Mortgage
Interest Rate can adjust in accordance with its terms, regardless
of changes in
the applicable Index.
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.
22
<PAGE>
MIN: The Mortgage Identification Number for Mortgage Loans
registered
with MERS on the MERS(R)System.
MINIMUM LIFETIME MORTGAGE RATE: The minimum level to which a
Mortgage
Interest Rate can adjust in accordance with its terms, regardless
of changes in
the applicable Index.
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 ADVANCE: An advance of principal or interest required to
be
made by the applicable Servicer pursuant to the related Servicing
Agreement or
the Master Servicer pursuant to Section 6.05.
MOODY'S: Moody's Investors Service, Inc. or its successor in
interest.
MORTGAGE 100K LOAN: As defined in the Additional Collateral
Servicing
Agreement.
MORTGAGE 100K PLEDGE AGREEMENT: As defined in the Additional
Collateral
Servicing Agreement.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues
from
time to time on any Mortgage Loan pursuant to the related Mortgage
Note, which
rate is equal to the "Mortgage Interest Rate" set forth with
respect thereto on
the Mortgage Loan Schedule.
MORTGAGE LOAN: A mortgage loan transferred and assigned to the
Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the
Trust Fund,
as identified in the Mortgage Loan Schedule (which shall include,
without
limitation, (i) with respect to each Cooperative Loan, the related
Mortgage
Note, Security Agreement, Assignment of Proprietary Lease,
Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights
appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a
Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and
all rights
appertaining thereto), including a mortgage loan the property
securing which has
become an REO Property.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement
dated as of _______ __, 200_, between the Mortgage Loan Seller, as
seller, and
Structured Asset Mortgage Investments II Inc., as purchaser, and
all amendments
thereof and supplements thereto, attached as Exhibit J.
MORTGAGE LOAN SCHEDULE: The schedule, attached hereto as Exhibit B
with
respect to the Mortgage Loans and as amended from time to time to
reflect the
repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
23
<PAGE>
MORTGAGE LOAN SELLER: [NAME OF MORTGAGE LOAN SELLER], as mortgage
loan
seller under the Mortgage Loan Purchase Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of
the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGED PROPERTY: Land and improvements securing the indebtedness
of
a Mortgagor under the related Mortgage Loan or, in the case of REO
Property,
such REO Property, or, in the case of a Cooperative Loan, the
related
Cooperative Lease and Cooperative Stock.
MORTGAGOR: The obligor on a Mortgage Note.
NET INTEREST SHORTFALL: With respect to any Distribution Date,
the
Interest Shortfall, if any, for such Distribution Date net of
Compensating
Interest Payments made with respect to such Distribution Date.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are
payable therefrom
to the related Servicer or the Master Servicer in accordance with
the related
Servicing Agreement or this Agreement and (ii) unreimbursed
advances by the
related Servicer or the Master Servicer and Monthly Advances.
NET RATE: With respect to each Mortgage Loan, the Mortgage
Interest
Rate in effect from time to time less the Aggregate Expense Rate
(expressed as a
per annum rate).
NONRECOVERABLE ADVANCE: Any advance or Monthly Advance (i) which
was
previously made or is proposed to be made by the Master Servicer,
the Trustee
(as successor Master Servicer) or the applicable Servicer and (ii)
which, in the
good faith judgment of the Master Servicer, the Trustee or the
applicable
Servicer, will not or, in the case of a proposed advance or Monthly
Advance,
would not, be ultimately recoverable by the Master Servicer, the
Trustee (as
successor Master Servicer) or the applicable Servicer from
Liquidation Proceeds,
Insurance Proceeds or future payments on the Mortgage Loan for
which such
advance or Monthly Advance was made or is proposed to be made.
NOTIONAL AMOUNT: The Notional Amount of the Class I-X-A-1
Certificates,
as of any date of determination, is equal to the Current Principal
Amount of the
Class I-A-1 Certificates. For federal income tax purposes, however,
the notional
amount of the Class I-X-A-1 Certificates is the Uncertificated
Principal Balance
of REMIC II Regular Interest I-A-1. The Notional Amount of the
Class II-X-A-1
Certificates, as of any date of determination, is equal to the
Current Principal
Amount of the Class II-A-1 Certificates. For federal income tax
purposes,
however, the notional amount of the Class II-X-A-1 Certificates is
the
Uncertificated Principal Balance of REMIC II Regular Interest
II-A-1. The
Notional Amount of the Class III-X-A-1 Certificates, as of any date
of
determination, is equal to the Current Principal Amount of the
Class III-A-1
Certificates. For federal income tax purposes, however, the
notional amount of
the Class III-X-A-1 Certificates is the Uncertificated Principal
Balance of
REMIC II Regular Interest III-A-1.
OFFERED CERTIFICATE: Any Senior Certificate or Offered
Subordinate
Certificate.
24
<PAGE>
OFFERED SUBORDINATE CERTIFICATES: The Class B-l, Class B-2 and
Class
B-3 Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the President or a Vice
President or
Assistant Vice President or other authorized officer of the Master
Servicer or
the Depositor, as applicable, and delivered to the Trustee, as
required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless required to be
Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the
Mortgage Loan
Seller, the Master Servicer or the Depositor.
ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The sum of the
aggregate
Current Principal Amounts of each Class of Subordinate Certificates
as of the
Closing Date.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the
sales
price of a Mortgaged Property at the time of origination of a
Mortgage Loan,
except in instances where either clauses (i) or (ii) is
unavailable, the other
may be used to determine the Original Value, or if both clauses (i)
and (ii) are
unavailable, Original Value may be determined from other sources
reasonably
acceptable to the Depositor.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a
Mortgage
Loan which, prior to such Due Date, was not the subject of a
Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and
was not
purchased or replaced.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination,
the
principal balance of a Mortgage Loan remaining to be paid by the
Mortgagor, or,
in the case of an REO Property, the principal balance of the
related Mortgage
Loan remaining to be paid by the Mortgagor at the time such
property was
acquired by the Trust Fund less any Net Liquidation Proceeds with
respect
thereto to the extent applied to principal.
PARENT POWER(R)AGREEMENT: As defined in the Additional
Collateral
Servicing Agreement.
PARENT POWER(R)MORTGAGE LOAN: As defined in the Additional
Collateral
Servicing Agreement.
PASS-THROUGH RATE: As to each Class of Certificates and the REMIC
I
Regular Interests and REMIC II Regular Interests, the rate of
interest
determined as provided with respect thereto, in Section 5.01(c).
Any monthly
calculation of interest at a stated rate shall be based upon annual
interest at
such rate divided by twelve.
PERIODIC RATE CAP: With respect to each Mortgage Loan, the
maximum
adjustment that can be made to the Mortgage Interest Rate on each
Interest
Adjustment Date in accordance with its terms, regardless of changes
in the
applicable Index.
PERMITTED INVESTMENTS: Any one or more of the following obligations
or
securities held in the name of the Trustee for the benefit of
the
Certificateholders:
25
<PAGE>
(i) direct obligations of, and obligations the timely payment of
which
are fully guaranteed by the United States of America or any agency
or
instrumentality of the United States of America the obligations of
which are
backed by the full faith and credit of the United States of
America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances
issued by any depository institution or trust company incorporated
under the
laws of the United States of America or any state thereof
(including the Trustee
or the Master Servicer or its Affiliates acting in its commercial
banking
capacity) and subject to supervision and examination by federal
and/or state
banking authorities, provided that the commercial paper and/or the
short- term
debt rating and/or the long-term unsecured debt obligations of such
depository
institution or trust company at the time of such investment or
contractual
commitment providing for such investment have the Applicable Credit
Rating or
better from each Rating Agency and (b) any other demand or time
deposit or
certificate of deposit that is fully insured by the Federal Deposit
Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any security
described
in clause (i) above or (b) any other security issued or guaranteed
by an agency
or instrumentality of the United States of America, the obligations
of which are
backed by the full faith and credit of the United States of
America, in either
case entered into with a depository institution or trust company
(acting as
principal) described in clause (ii)(a) above where the Trustee
holds the
security therefor;
(iv) securities bearing interest or sold at a discount issued by
any
corporation (including the Trustee or the Master Servicer or its
Affiliates)
incorporated under the laws of the United States of America or any
state thereof
that have the Applicable Credit Rating or better from each Rating
Agency at the
time of such investment or contractual commitment providing for
such investment;
provided, however, that securities issued by any particular
corporation will not
be Permitted Investments to the extent that investments therein
will cause the
then outstanding principal amount of securities issued by such
corporation and
held as part of the Trust to exceed 10% of the aggregate
Outstanding Principal
Balances of all the Mortgage Loans and Permitted Investments held
as part of the
Trust;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations payable on demand or
on a specified
date not more than one year after the date of issuance thereof)
having the
Applicable Credit Rating or better from each Rating Agency at the
time of such
investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company
or
other corporation or entity;
(vii) any other demand, money market or time deposit,
obligation,
security or investment as may be acceptable to each Rating Agency
as evidenced
in writing by each Rating Agency to the Trustee; and
(viii) any money market or common trust fund having the
Applicable
Credit Rating or better from each Rating Agency, including any such
fund for
which the Trustee or Master Servicer or any affiliate of the
Trustee or Master
Servicer acts as a manager or an advisor;
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provided, however, that no instrument or security shall be a
Permitted
Investment if such instrument or security evidences a right to
receive only
interest payments with respect to the obligations underlying such
instrument or
if such security provides for payment of both principal and
interest with a
yield to maturity in excess of 120% of the yield to maturity at par
or if such
instrument or security is purchased at a price greater than
par.
PERMITTED TRANSFEREE: Any Person other than a Disqualified
Organization
or an "electing large partnership" (as defined by Section 775 of
the Code).
PERSON: Any individual, corporation, partnership, joint
venture,
association, limited liability company, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
PHYSICAL CERTIFICATES: The Residual Certificates and the
Private
Certificates.
PREPAYMENT CHARGE: With respect to any Mortgage Loan, the charges
or
premiums, if any, due in connection with a full or partial
prepayment of such
Mortgage Loan in accordance with the terms thereof.
PREPAYMENT PERIOD: With respect to any Mortgage Loan and any
Distribution Date, the calendar month preceding the month in which
such
Distribution Date occurs.
PRINCIPAL PREPAYMENT: Any payment (whether partial or full) or
other
recovery of principal on a Mortgage Loan which is received in
advance of its
scheduled Due Date to the extent that it is not accompanied by an
amount as to
interest representing scheduled interest due on any date or dates
in any month
or months subsequent to the month of prepayment, including
Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation
Proceeds.
PRIVATE CERTIFICATES: Any Class B-4, Class B-5 and Class B-6
Certificate.
PROTECTED ACCOUNT: An account established and maintained for
the
benefit of Certificateholders by each Servicer with respect to the
related
Mortgage Loans and with respect to REO Property pursuant to the
respective
Servicing Agreements.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
QUALIFIED INSURER: Any insurance company duly qualified as such
under
the laws of the state or states in which the related Mortgaged
Property or
Mortgaged Properties is or are located, duly authorized and
licensed in such
state or states to transact the type of insurance business in which
it is
engaged and approved as an insurer by the Master Servicer, so long
as the claims
paying ability of which is acceptable to the Rating Agencies for
pass-through
certificates having the same rating as the Certificates rated by
the Rating
Agencies as of the Closing Date.
RATING AGENCIES: [R/A] AND [R/A].
REALIZED LOSS: Any (i) Bankruptcy Loss or (ii) as to any
Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such
Liquidated Mortgage
Loan plus accrued and
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unpaid interest thereon at the Mortgage Interest Rate through the
last day of
the month of such liquidation, less (y) the related Net Liquidation
Proceeds
with respect to such Mortgage Loan and the related Mortgage
Property.
RECORD DATE: With respect to any Distribution Date, the close
of
business on the last Business Day of the month immediately
preceding the month
of such Distribution Date.
REGULATION AB: Subpart 229.1100 - Asset Backed Securities
(Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to
time, and subject to such clarification and interpretation as have
been provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the
staff of the Commission, or as may be provided by the Commission or
its staff
from time to time.
REINVESTMENT AGREEMENTS: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company
or other
corporation or entity (including the Trustee).
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940,
as
amended, or similar state law.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the
Scheduled
Payment thereof has been reduced due to the application of the
Relief Act.
REMIC: A real estate mortgage investment conduit, as defined in
the
Code.
REMIC I: That group of assets contained in the Trust Fund
designated as
a REMIC consisting of (i) the Mortgage Loans, (ii) the Master
Servicer
Collection Account, (iii) any REO Property relating to the Mortgage
Loans, (iv)
the rights with respect to any related Servicing Agreement, (v) the
rights with
respect to any related Assignment Agreement and (vi) any proceeds
of the
foregoing.
REMIC I INTERESTS: The REMIC I Regular Interests and the Class
R-I
Certificates.
REMIC I REGULAR INTERESTS: The REMIC I Regular Interests, with
such
terms as described in Section 5.01(c).
REMIC I SUBORDINATED BALANCE RATIO: The ratio among the
Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending
with the
designation "A," equal to the ratio among, with respect to each
such REMIC I
Regular Interest, the excess of (x) the aggregate Scheduled
Principal Balance of
the Mortgage Loans in the related Loan Group over (y) the Current
Principal
Amount of the Senior Certificates in the related Group.
REMIC II: That group of assets contained in the Trust Fund
designated
as a REMIC consisting of the REMIC I Regular Interests.
REMIC II INTERESTS: The REMIC II Regular Interests and the Class
R-II
Certificates.
REMIC II REGULAR INTERESTS: As defined in Section 5.01(c).
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REMIC III: That group of assets contained in the Trust Fund
designated
as a REMIC consisting of the REMIC II Regular Interests.
REMIC III INTERESTS: The REMIC III Regular Certificates and the
Class
R-III Certificates.
REMIC III REGULAR CERTIFICATES: As defined in Section 5.01(c).
REMIC OPINION: An Opinion of Independent Counsel, to the effect
that
the proposed action described therein would not, under the REMIC
Provisions, (i)
cause any REMIC to fail to qualify as a REMIC while any regular
interest in such
REMIC is outstanding, (ii) result in a tax on prohibited
transactions with
respect to any REMIC or (iii) constitute a taxable contribution to
any REMIC
after the Startup Day.
REMIC PROVISIONS: The provisions of the federal income tax law
relating
to the REMIC, which appear at Sections 860A through 860G of the
Code, and
related provisions and regulations promulgated thereunder, as the
foregoing may
be in effect from time to time.
REO PROPERTY: A Mortgaged Property acquired in the name of the
Trustee,
for the benefit of Certificateholders, by foreclosure or
deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
REPURCHASE PRICE: With respect to any Mortgage Loan (or any
property
acquired with respect thereto) required to be repurchased by the
Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement or Article
II of this
Agreement, an amount equal to the sum of (i)(a) 100% of the
Outstanding
Principal Balance of such Mortgage Loan as of the date of
repurchase (or if the
related Mortgaged Property was acquired with respect thereto, 100%
of the
Outstanding Principal Balance at the date of the acquisition), plus
(b) accrued
but unpaid interest on the Outstanding Principal Balance at the
related Mortgage
Interest Rate, through and including the last day of the month of
repurchase,
plus (c) any unreimbursed Monthly Advances and servicing advances
payable to the
Servicer of the Mortgage Loan and (ii) any costs and damages (if
any) incurred
by the Trust in connection with any violation of such Mortgage Loan
of any
predatory or abusive lending laws.
REPURCHASE PROCEEDS: the Repurchase Price in connection with
any
repurchase of a Mortgage Loan by the Mortgage Loan Seller and any
cash deposit
in connection with the substitution of a Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached
hereto
as Exhibit D.
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 with respect to such Mortgage Loan.
REQUIRED SURETY PAYMENT: With respect to any defaulted
Additional
Collateral Mortgage Loan for which a claim is payable under the
Surety Bond,
under the procedures referred to in the Additional Collateral
Servicing
Agreement, the lesser of (i) the principal portion of the Realized
Loss with
respect to such Mortgage Loan and (ii) the excess, if any, of
(a)
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<PAGE>
the amount of Additional Collateral required at origination with
respect to such
Mortgage Loan (but not more than 30% of the original principal
balance of such
Mortgage Loan) over (b) the net proceeds realized by the Additional
Collateral
Servicer from the related Additional Collateral.
RESIDUAL CERTIFICATES: Any of the Class R Certificates.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust
Office
(or any successor thereto), including any Vice President, Assistant
Vice
President, Trust Officer, any Assistant Secretary, any trust
officer or any
other officer of the Trustee customarily performing functions
similar to those
performed by any of the above designated officers and having
direct
responsibility for the administration of this Agreement, and any
other officer
of the Trustee to whom a matter arising hereunder may be
referred.
RULE 144A CERTIFICATE: The certificate to be furnished by each
purchaser of a Private Certificate (which is also a Physical
Certificate) which
is a Qualified Institutional Buyer as defined under Rule 144A
promulgated under
the Securities Act, substantially in the form set forth as Exhibit
F-2 hereto.
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.,
and its successors in interest.
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month,
the
scheduled payment or payments of principal and interest due during
such month on
such Mortgage Loan which either is payable by a Mortgagor in such
month under
the related Mortgage Note or, in the case of REO Property, would
otherwise have
been payable under the related Mortgage Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled
Payment.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan on
any
Distribution Date, (i) the unpaid principal balance of such
Mortgage Loan as of
the close of business on the related Due Date (i.e., taking account
of the
principal payment to be made on such Due Date and irrespective of
any
delinquency in its payment), as specified in the amortization
schedule at the
time relating thereto (before any adjustment to such amortization
schedule by
reason of any bankruptcy or similar proceeding occurring after the
Cut-off Date
(other than a Deficient Valuation) or any moratorium or similar
waiver or grace
period) and less (ii) any Principal Prepayments (including the
principal portion
of Net Liquidation Proceeds) received during or prior to the
related Prepayment
Period; provided that the Scheduled Principal Balance of a
Liquidated Mortgage
Loan is zero.
SECURITIES ACCOUNT: As defined in the Additional Collateral
Servicing
Agreement.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: [NAME OF SECURITIES ADMINISTRATOR], or
its
successor in interest, or any successor securities administrator
appointed as
herein provided.
SECURITIES LEGEND: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT
BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
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"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A
UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
"QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR"
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF
REGULATION D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME
WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY
IN THE FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF
SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND
ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE
ACQUIRED DIRECTLY
OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME
SECURITY ACT OF 1974, AS AMENDED, AND SECTION 4975 OF THE INTERNAL
REVENUE CODE
OF 1986, AS AMENDED [in the case of a Residual Certificate or a
Private
Certificate] UNLESS THE OPINION OF COUNSEL REQUIRED BY SECTION 5.02
OF THE
POOLING AND SERVICING AGREEMENT IS PROVIDED [in the case of the
Class B-4, Class
B-5 and Class B-6 Certificates]:, UNLESS THE PROPOSED TRANSFER AND
HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND OPERATION OF THE
TRUST AND ITS
ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS
NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT
NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, PTE
91-38, PTE
90-1, PTE 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL
FIDUCIARY DUTIES ON THE PART OF THE DEPOSITOR, THE SECURITIES
ADMINISTRATOR, THE
MASTER SERVICER, ANY SERVICER OR THE TRUSTEE, WHICH WILL BE DEEMED
REPRESENTED
BY AN OWNER OF A BOOK- ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE
AND WILL BE
EVIDENCED BY A REPRESENTATION OR AN OPINION OF COUNSEL TO SUCH
EFFECT BY OR ON
BEHALF OF AN INSTITUTIONAL ACCREDITED INVESTOR."
SECURITY AGREEMENT: With respect to a Cooperative Loan, the
agreement
creating a security interest in favor of the originator in the
related
Cooperative Stock.
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SECURITY INSTRUMENT: A written instrument creating a valid first
lien
on a Mortgaged Property securing a Mortgage Note, which may be any
applicable
form of mortgage, deed of trust, deed to secure debt or security
deed, including
any riders or addenda thereto.
SENIOR CERTIFICATES: The Group 1 Senior Certificates, Group 2
Senior
Certificates, Group 3 Senior Certificates or Group 4 Senior
Certificates.
SENIOR OPTIMAL
PRINCIPAL AMOUNT: The Group 1 Senior Optimal Principal
Amount, Group 2 Senior Optimal Principal Amount, Group 3 Senior
Optimal
Principal Amount or Group 4 Senior Optimal Principal Amount, as
applicable.
SENIOR PERCENTAGE: The Group 1 Senior Percentage, Group 2
Senior
Percentage, Group 3 Senior Percentage or Group 4 Senior
Percentage.
SENIOR PREPAYMENT PERCENTAGE: The Group 1 Senior Prepayment
Percentage,
Group 2 Senior Prepayment Percentage, Group 3 Senior Prepayment
Percentage or
Group 4 Senior Prepayment Percentage.
SERVICER: With respect to each Mortgage Loan, [NAMES OF
SERVICERS].
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan, the
date
set forth in the related Servicing Agreement.
SERVICING AGREEMENTS: The [NAMES OF SERVICING AGREEMENTS].
SERVICING CRITERIA: The "servicing criteria" set forth in Item
1122(d)
of Regulation AB, as such may be amended from time to time, or
those Servicing
Criteria otherwise mutually agreed to by EMC and the applicable
Servicer in
response to evolving interpretations of Regulation AB and
incorporated into a
revised Exhibit N.
SERVICING FEE: As to any Mortgage Loan and Distribution Date, an
amount
equal to the product of (i) the Scheduled Principal Balance of such
Mortgage
Loan as of the Due Date in the preceding calendar month and (ii)
the applicable
Servicing Fee Rate.
SERVICING FEE RATE: As to any Mortgage Loan, a per annum rate as
set
forth in the Mortgage Loan Schedule.
STARTUP DAY: ____ __, 200_.
SUBORDINATE CERTIFICATES: The Class B-1, Class B-2, Class B-3,
Class
B-4, Class B-5 and Class B-6 Certificates.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: As to any Distribution
Date,
the amount by which (a) the sum of the Current Principal Amounts of
all the
Certificates (after giving effect to the distribution of principal
and the
allocation of applicable Realized Losses in reduction of the
Current Principal
Amounts of such Certificates on such Distribution Date) exceeds (b)
the
aggregate Scheduled Principal Balances of the Mortgage Loans on the
Due Date
related to such Distribution Date.
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SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: As to any Distribution Date,
an
amount equal to the sum, without duplication, of the following for
the Group 1,
Group 2, Group 3 and Group 4 Mortgage Loans (but in no event
greater than the
aggregate Current Principal Amount of the Subordinate Certificates
immediately
prior to such Distribution Date):
(i) the applicable Subordinate Percentage of the principal portion
of
all Scheduled Payments due on each Outstanding Mortgage Loan in the
related Loan
Group on the related Due Date as specified in the amortization
schedule at the
time applicable thereto (after adjustment for previous Principal
Prepayments but
before any adjustment to such amortization schedule by reason of
any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace
period);
(ii) the applicable Subordinate Prepayment Percentage of the
Scheduled
Principal Balance of each Mortgage Loan in the related Loan Group
that was the
subject of a Principal Prepayment in full received by the Master
Servicer during
the related Prepayment Period;
(iii) the applicable Subordinate Prepayment Percentage of each
Principal Prepayment in part received during the related Prepayment
Period with
respect to each Mortgage Loan in the related Loan Group;
(iv) the excess, if any, of (a) all Net Liquidation Proceeds
allocable
to principal received during the related Prepayment Period in
respect of each
Liquidated Mortgage Loan in the related Loan Group over (b) the sum
of the
amounts distributable to the related Senior Certificateholders
pursuant to
clause (iv) of the related definition of Senior Optimal Principal
Amount on such
Distribution Date;
(v) the applicable Subordinate Prepayment Percentage of the sum of
(a)
the Scheduled Principal Balance of each Mortgage Loan in the
related Loan Group
which was purchased with respect to such Distribution Date and (b)
the
difference, if any, between the Scheduled Principal Balance of a
Mortgage Loan
in the related Loan Group that has been replaced by the Mortgage
Loan Seller
with a Substitute Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement
in connection with such Distribution Date over the Scheduled
Principal Balance
of such Substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Current Principal
Amounts of
the Group 1 Senior Certificates (other than the Class I-X-A-1
Certificates),
Group 2 Senior Certificates (other than the Class II-X-A-1
Certificates), Group
3 Senior Certificates (other than the Class III-X-A-1 Certificates)
or Group 4
Senior Certificates have all been reduced to zero, 100% of the
related Senior
Optimal Principal Amount. After the aggregate Current Principal
Amount of the
Subordinate Certificates has been reduced to zero, the Subordinate
Optimal
Principal Amount shall be zero.
SUBORDINATE PERCENTAGE: The Group 1, Group 2, Group 3 or Group
4
Subordinate Percentage, with respect to the Group 1, Group 2, Group
3 or Group 4
Mortgage Loans, respectively.
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SUBORDINATE PREPAYMENT PERCENTAGE: The Group 1, Group 2, Group 3
or
Group 4 Subordinate Prepayment Percentage, with respect to the
Group 1, Group 2,
Group 3 or Group 4 Mortgage Loans, respectively.
SUBSTITUTE MORTGAGE LOAN: A mortgage loan tendered to the
Trustee
pursuant to the related Servicing Agreement, the Mortgage Loan
Purchase
Agreement or Section 2.04 of this Agreement, as applicable, in each
case, (i)
which has an Outstanding Principal Balance not greater nor
materially less than
the Mortgage Loan for which it is to be substituted; (ii) which has
a Mortgage
Interest Rate and Net Rate not less than, and not materially
greater than, such
Mortgage Loan; (iii) which has a maturity date not materially
earlier or later
than such Mortgage Loan and not later than the latest maturity date
of any
Mortgage Loan; (iv) which is of the same property type and
occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater
than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in
payment of
principal and interest as of the date of substitution; (vii) as to
which the
payment terms do not vary in any material respect from the payment
terms of the
Mortgage Loan for which it is to be substituted and (viii) which
has a Gross
Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate no
less than those
of such Mortgage Loan, has the same Index and interval between
Interest
Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime
Mortgage Rate no
lower than that of such Mortgage Loan.
SURETY BOND: The limited purpose Surety Bond (Policy No.
_________),
dated _________ __, _____ in respect to certain Additional
Collateral Mortgage
Loans, issued by [NAME OF INSURER] for the benefit of certain
beneficiaries,
including the Trustee for the benefit of the Certificateholders,
but only to the
extent that such Surety Bond covers any Additional Collateral
Mortgage Loans.
SURETY BOND ISSUER: [NAME OF INSURER] or any successor thereto.
TAX ADMINISTRATION AND TAX MATTERS PERSON: The Securities
Administrator
or any successor thereto or assignee thereof shall serve as tax
administrator
hereunder and as agent for the Tax Matters Person. The Holder of
each Class of
Residual Certificates shall be the Tax Matters Person for the
related REMIC, as
more particularly set forth in Section 9.12 hereof.
TERMINATION PURCHASE PRICE: The price, calculated as set forth
in
Section 10.01, to be paid in connection with the repurchase of the
Mortgage
Loans pursuant to Section 10.01.
TRUST FUND OR TRUST: The corpus of the trust created by this
Agreement,
consisting of the Mortgage Loans and the other assets described in
Section
2.01(a).
TRUSTEE: [NAME OF TRUSTEE], or its successor in interest, or
any
successor trustee appointed as herein provided.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to any REMIC I
Regular
Interest or REMIC II Regular Interest as of any Distribution Date,
the initial
principal amount of such Regular Interest, reduced by (i) all
amounts
distributed on previous Distribution Dates on such Regular Interest
with respect
to principal, (ii) the principal portion of all Realized Losses
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<PAGE>
allocated prior to such Distribution Date to such Regular Interest,
taking
account of the Loss Allocation Limitation and (iii) in the case of
a REMIC II
Regular Interest for which the Corresponding Class is a Subordinate
Certificate,
such Regular Interest's pro rata share, if any, of the applicable
Subordinate
Certificate Writedown Amount allocated to such Corresponding Class
for previous
Distribution Dates.
UNDERLYING SELLER: With respect to each Mortgage Loan, [NAMES
OF
UNDERLYING SELLERS], as indicated on the Mortgage Loan
Schedule.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or
related
REO Property such that the complete restoration of such Mortgaged
Property or
related REO Property is not fully reimbursable by the hazard
insurance policies
required to be maintained pursuant the related Servicing Agreement,
without
regard to whether or not such policy is maintained.
UNITED STATES PERSON: A citizen or resident of the United States,
a
corporation or partnership (including an entity treated as a
corporation or
partnership for federal income tax purposes) created or organized
in, or under
the laws of, the United States or any state thereof or the District
of Columbia
(except, in the case of a partnership, to the extent provided in
regulations),
provided that, for purposes solely of the 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
United
States Persons, or an estate whose income is subject to United
States federal
income tax regardless of its source, or a trust if a court within
the United
States is able to exercise primary supervision over the
administration of the
trust and one or more such United States Persons have the authority
to control
all substantial decisions of the trust. To the extent prescribed in
regulations
by the Secretary of the Treasury, which have not yet been issued, a
trust which
was in existence on August 20, 1996 (other than a trust treated as
owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of
the Code), and
which was treated as a United States person on August 20, 1996 may
elect to
continue to be treated as a United States person notwithstanding
the previous
sentence.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 CONVEYANCE
OF MORTGAGE LOANS TO TRUSTEE.
(a) The Depositor concurrently with the execution and delivery of
this
Agreement, sells, transfers and assigns to the Trust without
recourse all its
right, title and interest in and to (i) the Mortgage Loans
identified in the
Mortgage Loan Schedule, including all interest and principal due
with respect to
the Mortgage Loans after the Cut-off Date, but excluding any
payments of
principal and interest due on or prior to the Cut-off Date; (ii)
such assets as
shall from time to time be credited or are required by the terms of
this
Agreement to be credited to the Master Servicer Collection Account,
(iii) such
assets relating to the Mortgage Loans as from time to time may be
held by the
Servicers in Protected Accounts, the Master Servicer in the Master
Servicer
Collection Account and the Trustee in the Distribution Account,
(iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid
or payable by
the insurer under any Insurance Policy (to the extent the mortgagee
has a claim
thereto), (vi) the Mortgage
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Loan Purchase Agreement to the extent provided in Subsection
2.03(a), (vii) the
rights with respect to the Servicing Agreements as assigned to the
Trustee on
behalf of the Certificateholders by the Assignment Agreements,
(viii) the
Additional Collateral and the Mortgage Loan Seller's rights in
respect of the
Surety Bond relating to the Additional Collateral Mortgage Loans,
and (ix) any
proceeds of the foregoing. Although it is the intent of the parties
to this
Agreement that the conveyance of the Depositor's right, title and
interest in
and to the Mortgage Loans and other assets in the Trust Fund
pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in
the event that
such conveyance is deemed to be a loan, it is the intent of the
parties to this
Agreement that the Depositor shall be deemed to have granted to the
Trustee a
first priority perfected security interest in all of the
Depositor's right,
title and interest in, to and under the Mortgage Loans and other
assets in the
Trust Fund, and that this Agreement shall constitute a security
agreement under
applicable law.
(b) In
connection with the above transfer and assignment, the
Depositor
hereby deposits with the Trustee or the Custodian, as its agent,
with respect to
(I) each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of
endorsements
from the original payee thereof to the Person endorsing it to
the
Trustee, or lost note affidavit together with a copy of the
related
Mortgage Note,
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language
indicating
that such Mortgage Loan is a MOM Loan, which shall have been
recorded
(or if the original is not available, a copy), with evidence of
such
recording indicated thereon (or if clause (x) in the proviso
below
applies, shall be in recordable form),
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy
of the assignment (which may be in the form of a blanket assignment
if
permitted in the jurisdiction in which the Mortgaged Property
is
located) to "[NAME OF TRUSTEE], as Trustee", with evidence of
recording
with respect to each Mortgage Loan in the name of the Trustee
thereon
(or if clause (x) in the proviso below applies or for Mortgage
Loans
with respect to which the related Mortgaged Property is located in
a
state other than Maryland or an Opinion of Counsel has been
provided as
set forth in this Section 2.01(b), shall be in recordable
form),
(iv) all intervening assignments of the Security Instrument,
if applicable and only to the extent available to the Depositor
with
evidence of recording thereon,
(v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if
any,
(vi) the original policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for
title
insurance, and
(vii) originals of all modification agreements, if applicable
and available.
and (II) with respect to each Cooperative Loan so assigned:
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(i) The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of
endorsements
from the originator thereof to the Person endorsing it to the
Trustee,
or lost note affidavit, together with a copy of the related
Mortgage
Note;
(ii) A counterpart of the Cooperative Lease and the Assignment
of Proprietary Lease to the originator of the Cooperative Loan
with
intervening assignments showing an unbroken chain of title from
such
originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing
the related Cooperative Stock pledged with respect to such
Cooperative
Loan, together with an undated stock power (or other similar
instrument) executed in blank;
(iv) The original recognition agreement by the Cooperative of
the interests of the mortgagee with respect to the related
Cooperative
Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such
Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security
Agreement
and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security
interest referenced in clause (vi) above showing an unbroken chain
of
title from the originator to the Trustee, each with evidence of
recording thereof, evidencing the interest of the originator under
the
Security Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the
originator in the Security Agreement, Assignment of Proprietary
Lease
and the recognition agreement referenced in clause (iv) above,
showing
an unbroken chain of title from the originator to the Trustee;
and
(ix)
The original of each modification, assumption agreement
or preferred loan agreement, if any, relating to such Cooperative
Loan;
PROVIDED, HOWEVER, that in lieu of the foregoing, the Depositor may
deliver the
following documents, under the circumstances set forth below: (x)
in lieu of the
original Security Instrument, assignments to the Trustee or
intervening
assignments thereof which have been delivered, are being delivered
or will, upon
receipt of recording information relating to the Security
Instrument required to
be included thereon, be delivered to recording offices for
recording and have
not been returned to the Depositor in time to permit their delivery
as specified
above, the Depositor may deliver a true copy thereof with a
certification by the
Depositor, on the face of such copy, substantially as follows:
"Certified to be
a true and correct copy of the original, which has been transmitted
for
recording"; (y) in lieu of the Security Instrument, assignment to
the Trustee or
intervening assignments thereof, if the applicable jurisdiction
retains the
originals of such documents (as evidenced by a certification from
the Depositor
to such effect) the Depositor may deliver photocopies of such
documents
containing an original certification by the judicial or other
governmental
authority of the jurisdiction where
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such documents were recorded; and (z) the Depositor shall not be
required to
deliver intervening assignments or Mortgage Note endorsements
between the
related Underlying Seller and the Mortgage Loan Seller, between the
Mortgage
Loan Seller and the Depositor, and between the Depositor and the
Trustee; and
provided, further, however, that in the case of Mortgage Loans
which have been
prepaid in full after the Cut-off Date and prior to the Closing
Date, the
Depositor, in lieu of delivering the above documents, may deliver
to the Trustee
or the Custodian, as its agent, a certification to such effect and
shall deposit
all amounts paid in respect of such Mortgage Loans in the Master
Servicer
Collection Account on the Closing Date. The Depositor shall deliver
such
original documents (including any original documents as to which
certified
copies had previously been delivered) to the Trustee or the
Custodian, as its
agent, promptly after they are received. The Depositor shall cause,
at its
expense, the assignment of the Security Instrument to the Trustee
to be recorded
not later than 180 days after the Closing Date, unless (a) such
recordation is
not required by the Rating Agencies or an Opinion of Counsel
addressed to the
Trustee has been provided to the Trustee (with a copy to the
Custodian) which
states that recordation of such Security Instrument is not required
to protect
the interests of the Certificateholders in the related Mortgage
Loans or (b)
MERS is identified on the Mortgage or on a properly recorded
assignment of the
Mortgage as the mortgagee of record solely as nominee for the
Depositor and its
successor and assigns; provided, however, that each assignment
shall be
submitted for recording by the Depositor in the manner described
above, at no
expense to the Trust or the Trustee or the Custodian, as its agent,
upon the
earliest to occur of: (i) reasonable direction by the Holders of
Certificates
evidencing Fractional Undivided Interests aggregating not less than
25% of the
Trust, (ii) the occurrence of an Event of Default, (iii) the
occurrence of a
bankruptcy, insolvency or foreclosure relating to the Depositor and
(iv) the
occurrence of a servicing transfer as described in Section 8.02
hereof.
Notwithstanding the foregoing, if the Depositor fails to pay the
cost of
recording the assignments, such expense will be paid by the Trustee
and the
Trustee shall be reimbursed for such expenses by the Trust in
accordance with
Section 9.05.
(c) Each of the Mortgage Loan Seller (to the extent such rights
have
not previously been conveyed to the Depositor pursuant to the
Mortgage Loan
Purchase Agreement) and the Depositor hereby assign to the Trustee
(i) its
security interest in and to any Additional Collateral, its right to
receive
amounts due or to become due in respect of any Additional
Collateral and all of
its rights in each Additional Collateral Agreement and (ii) its
rights as
beneficiary under the Surety Bond, in respect of any Additional
Collateral
Mortgage Loans.
Section 2.02 ACCEPTANCE
OF MORTGAGE LOANS BY TRUSTEE.
(a) The Trustee acknowledges the sale, transfer and assignment of
the
Trust Fund to it by the Depositor and receipt of, subject to
further review and
the exceptions which may be noted pursuant to the procedures
described below,
and declares that it holds, the documents (or certified copies
thereof)
delivered to it pursuant to Section 2.01, and declares that it will
continue to
hold those documents and any amendments, replacements or
supplements thereto and
all other assets of the Trust Fund delivered to it as Trustee in
trust for the
use and benefit of all present and future Holders of the
Certificates. On the
Closing Date, the Custodian, with respect to the Mortgage Loans,
shall
acknowledge with respect to each Mortgage Loan by delivery to the
Depositor and
the Trustee of an Initial Certification receipt of the Mortgage
File, but
without review of such Mortgage File, except to the extent
necessary to confirm
that such Mortgage File contains the related Mortgage Note or lost
note
affidavit. No later than 90 days after the Closing
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Date (or, with respect to any Substitute Mortgage Loan, within five
Business
Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees,
for the benefit of the Certificateholders, to review or cause to be
reviewed by
the Custodian on its behalf (under the Custodial Agreement), each
Mortgage File
delivered to it and to execute and deliver, or cause to be executed
and
delivered, to the Depositor and the Trustee an Interim
Certification. In
conducting such review, the Trustee or Custodian will ascertain
whether all
required documents have been executed and received, and based on
the Mortgage
Loan Schedule, whether those documents relate, determined on the
basis of the
Mortgagor name, original principal balance and loan number, to the
Mortgage
Loans it has received, as identified in the Mortgage Loan Schedule.
In
performing any such review, the Trustee or the Custodian, as its
agent, may
conclusively rely on the purported due execution and genuineness of
any such
document and on the purported genuineness of any signature thereon.
If the
Trustee or the Custodian, as its agent, finds any document
constituting part of
the Mortgage File not to have been executed or received, or to be
unrelated to
the Mortgage Loans identified in Exhibit B or to appear to be
defective on its
face, the Trustee or the Custodian, as its agent, shall promptly
notify the
Mortgage Loan Seller. In accordance with the Mortgage Loan Purchase
Agreement,
the Mortgage Loan Seller shall correct or cure any such defect
within ninety
(90) days from the date of notice from the Trustee or the
Custodian, as its
agent, of the defect and if the Mortgage Loan Seller fails to
correct or cure
the defect within such period, and such defect materially and
adversely affects
the interests of the Certificateholders in the related Mortgage
Loan, the
Trustee or the Custodian, as its agent, shall enforce the Mortgage
Loan Seller's
obligation pursuant to the Mortgage Loan Purchase Agreement, within
90 days from
the Trustee's or the Custodian's notification, to purchase such
Mortgage Loan at
the Repurchase Price; provided that, if such defect would cause the
Mortgage
Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of
the Code, any such cure or repurchase must occur within 90 days
from the date
such breach was discovered; provided, however, that if such defect
relates
solely to the inability of the Mortgage Loan Seller to deliver the
original
Security Instrument or intervening assignments thereof, or a
certified copy
because the originals of such documents, or a certified copy have
not been
returned by the applicable jurisdiction, the Mortgage Loan Seller
shall not be
required to purchase such Mortgage Loan if the Mortgage Loan Seller
delivers
such original documents or certified copy promptly upon receipt,
but in no event
later than 360 days after the Closing Date. The foregoing
repurchase obligation
shall not apply in the event that the Mortgage Loan Seller cannot
deliver such
original or copy of any document submitted for recording to the
appropriate
recording office in the applicable jurisdiction because such
document has not
been returned by such office; provided that the Mortgage Loan
Seller shall
instead deliver a recording receipt of such recording office or, if
such receipt
is not available, a certificate confirming that such documents have
been
accepted for recording, and delivery to the Trustee or the
Custodian, as its
agent, shall be effected by the Mortgage Loan Seller within thirty
days of its
receipt of the original recorded document.
(b)
No later than 180 days after the Closing Date, the Trustee or
the
Custodian, as its agent, will review, for the benefit of the
Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or
cause to be
executed and delivered to the Depositor and the Trustee a Final
Certification.
In conducting such review, the Trustee or the Custodian, as its
agent, will
ascertain whether an original of each document required to be
recorded has been
returned from the recording office with evidence of recording
thereon or a
certified copy has been obtained from the recording office. If the
Trustee or
the Custodian, as its agent, finds any document constituting part
of the
Mortgage File has not been received, or to be unrelated, determined
on
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the basis of the Mortgagor name, original principal balance and
loan number, to
the Mortgage Loans identified in Exhibit B or to appear defective
on its face (a
"Material Defect"), the Trustee or the Custodian, as its agent,
shall promptly
notify the Mortgage Loan Seller (provided, however, that with
respect to those
documents described in subsections (I)(b)(iv), (v), (vii) and
(viii)(2) of
Section 2.01 and subsection (II)(ix) of Section 2.01, the Trustee's
obligations
shall extend only to the documents actually delivered pursuant to
such
subsections). In accordance with the Mortgage Loan Purchase
Agreement, the
Mortgage Loan Seller shall correct or cure any such defect within
90 days from
the date of notice from the Trustee or the Custodian, as its agent,
of the
Material Defect and if the Mortgage Loan Seller is unable to cure
such defect
within such period, and if such defect materially and adversely
affects the
interests of the Certificateholders in the related Mortgage Loan,
the Trustee
shall enforce the Mortgage Loan Seller's obligation under the
Mortgage Loan
Purchase Agreement to provide a Substitute Mortgage Loan (if within
two years of
the Closing Date) or purchase such Mortgage Loan at the Repurchase
Price,
provided that, if such defect would cause the Mortgage Loan to be
other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such
cure, repurchase or substitution must occur within 90 days from the
date such
breach was discovered, provided, however, that if such defect
relates solely to
the inability of the Mortgage Loan Seller to deliver the original
Security
Instrument or intervening assignments thereof, or a certified copy,
because the
originals of such documents or a certified copy, have not been
returned by the
applicable jurisdiction, the Mortgage Loan Seller shall not be
required to
purchase such Mortgage Loan, if the Mortgage Loan Seller delivers
such original
documents or certified copy promptly upon receipt, but in no event
later than
360 days after the Closing Date. The foregoing repurchase
obligation shall not
apply in the event that the Mortgage Loan Seller cannot deliver
such original or
copy of any document submitted for recording to the appropriate
recording office
in the applicable jurisdiction because such document has not been
returned by
such office; provided that the Mortgage Loan Seller shall instead
deliver a
recording receipt of such recording office or, if such receipt is
not available,
a certificate confirming that such documents have been accepted for
recording,
and delivery to the Trustee or the Custodian, as its agent, shall
be effected by
the Mortgage Loan Seller within thirty days of its receipt of the
original
recorded document.
(c) In the event that a Mortgage Loan is purchased by the Mortgage
Loan
Seller in accordance with Subsections 2.02(a) or (b) above, the
Mortgage Loan
Seller shall remit to the Master Servicer the Repurchase Price for
deposit in
the Master Servicer Collection Account and the Mortgage Loan Seller
shall
provide to the Trustee written notification detailing the
components of the
Repurchase Price. Upon deposit of the Repurchase Price in the
Master Servicer
Collection Account, the Depositor shall notify the Trustee and the
Trustee or
the Custodian, as its agent (upon receipt of a Request for Release
in the form
of Exhibit D attached hereto with respect to such Mortgage Loan),
shall release
to the Mortgage Loan Seller the related Mortgage File and the
Trustee shall
execute and deliver all instruments of transfer or assignment,
without recourse,
representation or warranty, furnished to it by the Mortgage Loan
Seller, as are
necessary to vest in the Mortgage Loan Seller title to and rights
under the
Mortgage Loan. Such purchase shall be deemed to have occurred on
the date on
which the Repurchase Price in available funds is received by the
Trustee. The
Trustee shall amend the Mortgage Loan Schedule, which was
previously delivered
to it by Depositor in a form agreed to between the Depositor and
the Trustee, to
reflect such repurchase and shall promptly notify the Rating
Agencies and the
Master Servicer of such amendment. The obligation of the Mortgage
Loan Seller to
repurchase any Mortgage Loan as to which such a defect in a
constituent document
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exists shall be the sole remedy respecting such defect available to
the
Certificateholders or to the Trustee on their behalf.
Section 2.03 ASSIGNMENT
OF INTEREST IN THE MORTGAGE LOAN PURCHASE
AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of
the
Certificateholders, all of its right, title and interest in the
Mortgage Loan
Purchase Agreement, including but not limited to the Depositor's
rights and
obligations pursuant to the Servicing Agreements (noting that the
Mortgage Loan
Seller has retained the right in the event of breach of the
representations,
warranties and covenants, if any, with respect to the related
Mortgage Loans of
the related Servicer under the related Servicing Agreement to
enforce the
provisions thereof and to seek all or any available remedies). The
obligations
of the Mortgage Loan Seller to substitute or repurchase, as
applicable, a
Mortgage Loan shall be the Trustee's and the Certificateholders'
sole remedy for
any breach thereof. At the request of the Trustee, the Depositor
shall take such
actions as may be necessary to enforce the above right, title and
interest on
behalf of the Trustee and the Certificateholders or shall execute
such further
documents as the Trustee may reasonably require in order to enable
the Trustee
to carry out such enforcement.
(b) If the Depositor, the Securities Administrator or the
Trustee
discovers a breach of any of the representations and warranties set
forth in the
Mortgage Loan Purchase Agreement, which breach materially and
adversely affects
the value of the interests of Certificateholders or the Trustee in
the related
Mortgage Loan, the party discovering the breach shall give prompt
written notice
of the breach to the other parties. The Mortgage Loan Seller,
within 90 days of
its discovery or receipt of notice that such breach has occurred
(whichever
occurs earlier), shall cure the breach in all material respects or,
subject to
the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as
applicable, shall purchase the Mortgage Loan or any property
acquired with
respect thereto from the Trustee; provided, however, that if there
is a breach
of any representation set forth in the Mortgage Loan Purchase
Agreement or
Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the
related property acquired with respect thereto has been sold, then
the Mortgage
Loan Seller shall pay, in lieu of the Repurchase Price, any excess
of the
Repurchase Price over the Net Liquidation Proceeds received upon
such sale. (If
the Net Liquidation Proceeds exceed the Repurchase Price, any
excess shall be
paid to the Mortgage Loan Seller to the extent not required by law
to be paid to
the borrower.) Any such purchase by the Mortgage Loan Seller shall
be made by
providing an amount equal to the Repurchase Price to the Master
Servicer for
deposit in the Master Servicer Collection Account and written
notification
detailing the components of such Repurchase Price. The Depositor
shall notify
the Trustee and submit to the Trustee or the Custodian, as its
agent, a Request
for Release, and the Trustee shall release, or the Trustee shall
cause the
Custodian to release, to the Mortgage Loan Seller the related
Mortgage File and
the Trustee shall execute and deliver all instruments of transfer
or assignment
furnished to it by the Mortgage Loan Seller, without recourse,
representation or
warranty as are necessary to vest in the Mortgage Loan Seller title
to and
rights under the Mortgage Loan or any property acquired with
respect thereto.
Such purchase shall be deemed to have occurred on the date on which
the
Repurchase Price in available funds is received by the Trustee. The
Master
Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and
shall promptly notify the Trustee and the Rating Agencies of such
amendment.
Enforcement of the obligation of the Mortgage Loan Seller to
purchase (or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any
property
acquired with respect thereto (or pay the Repurchase Price as set
forth in the
above proviso) as to which a
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breach has occurred and is continuing shall constitute the sole
remedy
respecting such breach available to the Certificateholders or the
Trustee on
their behalf.
Section 2.04
SUBSTITUTION OF MORTGAGE LOANS.
Notwithstanding anything to the contrary in this Agreement, in lieu
of
purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement or
Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller
may, no later
than the date by which such purchase by the Mortgage Loan Seller
would otherwise
be required, tender to the Trustee a Substitute Mortgage Loan
accompanied by a
certificate of an authorized officer of the Mortgage Loan Seller
that such
Substitute Mortgage Loan conforms to the requirements set forth in
the
definition of "Substitute Mortgage Loan" in the Mortgage Loan
Purchase Agreement
or this Agreement, as applicable; provided, however, that
substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as
applicable, in lieu of purchase shall not be permitted after the
termination of
the two-year period beginning on the Startup Day; provided,
further, that if the
breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or
substitution must
occur within 90 days from the date the breach was discovered. The
Trustee or the
Custodian, as its agent, shall examine the Mortgage File for any
Substitute
Mortgage Loan in the manner set forth in Section 2.02(a) and the
Trustee or the
Custodian, as its agent, shall notify the Mortgage Loan Seller, in
writing,
within five Business Days after receipt, whether or not the
documents relating
to the Substitute Mortgage Loan satisfy the requirements of the
fourth sentence
of Subsection 2.02(a). Within two Business Days after such
notification, the
Mortgage Loan Seller shall provide to the Trustee for deposit in
the
Distribution Account the amount, if any, by which the Outstanding
Principal
Balance as of the next preceding Due Date of the Mortgage Loan for
which
substitution is being made, after giving effect to the Scheduled
Principal due
on such date, exceeds the Outstanding Principal Balance as of such
date of the
Substitute Mortgage Loan, after giving effect to Scheduled
Principal due on such
date, which amount shall be treated for the purposes of this
Agreement as if it
were the payment by the Mortgage Loan Seller of the Repurchase
Price for the
purchase of a Mortgage Loan by the Mortgage Loan Seller. After such
notification
to the Mortgage Loan Seller and, if any such excess exists, upon
receipt of such
deposit, the Trustee shall accept such Substitute Mortgage Loan
which shall
thereafter be deemed to be a Mortgage Loan hereunder. In the event
of such a
substitution, accrued interest on the Substitute Mortgage Loan for
the month in
which the substitution occurs and any Principal Prepayments made
thereon during
such month shall be the property of the Trust Fund and accrued
interest for such
month on the Mortgage Loan for which the substitution is made and
any Principal
Prepayments made thereon during such month shall be the property of
the Mortgage
Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan
due on the
Due Date in the month of substitution shall be the property of the
Mortgage Loan
Seller and the Scheduled Principal on the Mortgage Loan for which
the
substitution is made due on such Due Date shall be the property of
the Trust
Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery
to the
Trustee or Custodian of a Request for Release for such Mortgage
Loan), the
Trustee shall release to the Mortgage Loan Seller the related
Mortgage File
related to any Mortgage Loan released pursuant to the Mortgage Loan
Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and
shall execute
and deliver all instruments of transfer or assignment, without
recourse,
representation or warranty in form as provided to it as are
necessary to vest in
the Mortgage Loan Seller title to and rights under any Mortgage
Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this
Agreement,
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as applicable. The Mortgage Loan Seller shall deliver the documents
related to
the Substitute Mortgage Loan in accordance with the provisions of
the Mortgage
Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this
Agreement, as
applicable, with the date of acceptance of the Substitute Mortgage
Loan deemed
to be the Closing Date for purposes of the time periods set forth
in those
Subsections. The representations and warranties set forth in the
Mortgage Loan
Purchase Agreement shall be deemed to have been made by the
Mortgage Loan Seller
with respect to each Substitute Mortgage Loan as of the date of
acceptance of
such Mortgage Loan by the Trustee. The Master Servicer shall amend
the Mortgage
Loan Schedule to reflect such substitution and shall provide a copy
of such
amended Mortgage Loan Schedule to the Trustee and the Rating
Agencies.
Section 2.05 ISSUANCE
OF CERTIFICATES.
(a) The Trustee acknowledges the assignment to it of the Mortgage
Loans
and the other assets comprising the Trust Fund and, concurrently
therewith, has
signed, and countersigned and delivered to the Depositor, in
exchange therefor,
Certificates in such authorized denominations representing such
Fractional
Undivided Interests as the Depositor has requested. The Trustee
agrees that it
will hold the Mortgage Loans and such other assets as may from time
to time be
delivered to it segregated on the books of the Trustee in trust for
the benefit
of the Certificateholders.
(b) The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the
Trustee without recourse all the right, title and interest of the
Depositor in
and to the REMIC I Regular Interests, and the other assets of REMIC
II for the
benefit of the holders of the REMIC II Certificates. The Trustee
acknowledges
receipt of the REMIC I Regular Interests (which are uncertificated)
and the
other assets of REMIC II and declares that it holds and will hold
the same in
trust for the exclusive use and benefit of the holders of the REMIC
II
Certificates.
(c) The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the
Trustee without recourse all the right, title and interest of the
Depositor in
and to the REMIC II Regular Interests, and the other assets of
REMIC III for the
benefit of the holders of the REMIC III Certificates. The Trustee
acknowledges
receipt of the REMIC II Regular Interests (which are
uncertificated) and the
other assets of REMIC III and declares that it holds and will hold
the same in
trust for the exclusive use and benefit of the holders of the REMIC
III
Certificates.
Section 2.06
REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR.
The Depositor hereby represents and warrants to the Trustee, the
Master
Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware
and (b) is qualified and in good standing as a foreign corporation
to
do business in each jurisdiction where such qualification is
necessary,
except where the failure so to qualify would not reasonably be
expected
to have a material adverse effect on the Depositor's business
as
presently
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<PAGE>
conducted or on the Depositor's ability to enter into this
Agreement
and to consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to
enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate
action
on the part of the Depositor; and neither the execution and
delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict
with or result in a breach of, or constitute a default under, any
of
the provisions of any law, governmental rule, regulation,
judgment,
decree or order binding on the Depositor or its properties or
the
articles
of incorporation or by-laws of the Depositor, except those
conflicts, breaches or defaults which would not reasonably be
expected
to have a material adverse effect on the Depositor's ability to
enter
into this Agreement and to consummate the transactions
contemplated
hereby;
(iv) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions
contemplated
hereby do not require the consent or approval of, the giving of
notice
to, the registration with, or the taking of any other action in
respect
of, any state, federal or other governmental authority or
agency,
except those consents, approvals, notices, registrations or
other
actions as have already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery
by
the other
parties hereto, constitutes a valid and binding obligation of
the Depositor enforceable against it in accordance with its
terms
(subject to applicable bankruptcy and insolvency laws and other
similar
laws affecting the enforcement of the rights of creditors
generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the
Depositor,
before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other
matter
which in the judgment of the Depositor will be determined adversely
to
the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter
into
this Agreement or perform its obligations under this Agreement; and
the
Depositor is not in default with respect to any order of any
court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by
this
Agreement; and
(vii) immediately prior to the transfer and assignment to the
Trustee, each Mortgage Note and each Mortgage were not subject to
an
assignment or pledge, and the Depositor had good and marketable
title
to and was the sole owner thereof and had full right to transfer
and
sell such Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest.
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Section 2.07 Purposes and Powers of the
Trust.
(a) The purpose of the common law trust, as created hereunder, is
to
engage in the following activities:
(b) acquire and hold the Mortgage Loans and the other assets of
the
Trust Fund and the proceeds therefrom;
(c) to issue the Certificates sold to the Depositor in exchange for
the
Mortgage Loans;
(d) to make payments on the Certificates;
(e) to engage in those activities that are necessary, suitable
or
convenient to accomplish the foregoing or are incidental thereto or
connected
therewith; and
(f) subject to compliance with this Agreement, to engage in such
other
activities as may be required in connection with conservation of
the Trust Fund
and the making of distributions to the Certificateholders.
(g) The trust is hereby authorized to engage in the foregoing
activities. The Trustee shall not cause the trust to engage in any
activity
other than in connection with the foregoing or other than as
required or
authorized by the terms of this Agreement while any Certificate is
outstanding,
and this Section 2.07 may not be amended, without the consent of
the
Certificateholders evidencing 51% or more of the aggregate Voting
Rights of the
Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 MASTER
SERVICER.
The Master Servicer shall supervise, monitor and oversee the
obligation
of the Servicers to service and administer their respective
Mortgage Loans in
accordance with the terms of the applicable Servicing Agreements
and shall have
full power and authority to do any and all things which it may deem
necessary or
desirable in connection with such master servicing and
administration. In
performing its obligations hereunder, the Master Servicer shall act
in a manner
consistent with Accepted Master Servicing Practices. Furthermore,
the Master
Servicer shall oversee and consult with each Servicer as necessary
from
time-to-time to carry out the Master Servicer's obligations
hereunder, shall
receive, review and evaluate all reports, information and other
data provided to
the Master Servicer by each Servicer and shall cause each Servicer
to perform
and observe the covenants, obligations and conditions to be
performed or
observed by such Servicer under its applicable Servicing Agreement.
The Master
Servicer shall independently and separately monitor each Servicer's
servicing
activities with respect to each related Mortgage Loan, reconcile
the results of
such monitoring with such information provided in the previous
sentence on a
monthly basis and coordinate corrective adjustments to the
Servicers' and Master
Servicer's records, and based on such reconciled and corrected
information, the
Master Servicer shall provide such information to the Securities
Administrator
as shall be necessary in order for it to prepare the statements
specified in
Section 6.04, and prepare any other information and statements
required to be
forwarded by the Master Servicer hereunder. The Master Servicer
shall
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reconcile the results of its Mortgage Loan monitoring with the
actual
remittances of the Servicers to the Protected Account pursuant to
the
applicable Servicing Agreements.
Notwithstanding anything in this Agreement to the contrary,
with
respect to any Mortgage Loan secured by any Additional Collateral,
the Master
Servicer shall have no duty or obligation to supervise, monitor or
oversee the
activities of [NAME OF ADDITIONAL COLLATERAL SERVICER] (or any
successor
thereto) under any Additional Collateral Servicing Agreements with
respect to
any Additional Collateral (unless the Master Servicer shall have
assumed the
obligations of [NAME OF ADDITIONAL COLLATERAL SERVICER](or any
successor
thereto) as successor Servicer under any Additional Collateral
Servicing
Agreement pursuant to Section 3.03 of this Agreement, in which
event, as
successor Servicer, it will service and administer the Additional
Collateral in
accordance with the provisions of the Additional Collateral
Servicing
Agreements.
The Trustee shall furnish the Servicers and the Master Servicer
with
any powers of attorney and other documents in form as provided to
it necessary
or appropriate to enable the Servicers and the Master Servicer to
service and
administer the related Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation
in
possession of the Trustee regarding the related Mortgage Loans and
REO Property
and the servicing thereof to the Certificateholders, the FDIC, and
the
supervisory agents and examiners of the FDIC, such access being
afforded only
upon reasonable prior written request and during normal business
hours at the
office of the Trustee; provided, however, that, unless otherwise
required by
law, the Trustee shall not be required to provide access to such
records and
documentation if the provision thereof would violate the legal
right to privacy
of any Mortgagor. The Trustee shall allow representatives of the
above entities
to photocopy any of the records and documentation and shall provide
equipment
for that purpose at a charge that covers the Trustee's actual
costs.
The Trustee shall execute and deliver to the related Servicer and
the
Master Servicer any court pleadings, requests for trustee's sale or
other
documents necessary or desirable to (i) the foreclosure or
trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to
obtain
judgment against any Mortgagor on the Mortgage Note or Security
Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any
other rights or remedies provided by the Mortgage Note or Security
Instrument or
otherwise available at law or equity.
Section 3.02
REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee and the
Securities
Administrator shall act in accordance herewith to assure continuing
treatment of
such REMIC as a REMIC, and the Trustee and the Securities
Administrator shall
comply with any directions of the Depositor, the related Servicer
or the Master
Servicer to assure such continuing treatment. In particular, the
Trustee shall
not (a) sell or permit the sale of all or any portion of the
Mortgage Loans or
of any investment of deposits in an Account unless such sale is as
a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the
Trustee has
received a REMIC Opinion addressed to the Trustee prepared at the
expense of the
Trust Fund; and (b) other than with respect to a substitution
pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of
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this Agreement, as applicable, accept any contribution to any
REMIC
after the Startup Day without receipt of a REMIC Opinion addressed
to
the Trustee.
Section 3.03 MONITORING
OF SERVICERS.
(a) The Master Servicer shall be responsible for reporting to
the
Trustee and the Depositor the compliance by each Servicer with its
duties under
the related Servicing Agreement. In the review of each Servicer's
activities,
the Master Servicer may rely upon an officer's certificate of the
Servicer (or
similar document signed by an officer of the Servicer) with regard
to such
Servicer's compliance with the terms of its Servicing Agreement. In
the event
that the Master Servicer, in its judgment, determines that a
Servicer should be
terminated in accordance with its Servicing Agreement, or that a
notice should
be sent pursuant to such Servicing Agreement with respect to the
occurrence of
an event that, unless cured, would constitute grounds for such
termination, the
Master Servicer shall notify the Depositor and the Trustee thereof
and the
Master Servicer shall issue such notice or take such other action
as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer
under the
related Servicing Agreement, and shall, in the event that a
Servicer fails to
perform its obligations in accordance with the related Servicing
Agreement,
subject to the preceding paragraph, terminate the rights and
obligations of such
Servicer thereunder and act as servicer of the related Mortgage
Loans or to
cause the Trustee to enter in to a new Servicing Agreement with a
successor
Servicer selected by the Master Servicer; provided, however, it is
understood
and acknowledged by the parties hereto that there will be a period
of transition
(not to exceed 90 days) before the actual servicing functions can
be fully
transferred to such successor Servicer. Such enforcement,
including, without
limitation, the legal prosecution of claims, termination of
Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such
form and carried
out to such an extent and at such time as the Master Servicer, in
its good faith
business judgment, would require were it the owner of the related
Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement
at its own
expense, provided that the Master Servicer shall not be required to
prosecute or
defend any legal action except to the extent that the Master
Servicer shall have
received reasonable indemnity for its costs and expenses in
pursuing such
action.
(c) To the extent that the costs and expenses of the Master
Servicer
related to any termination of a Servicer, appointment of a
successor Servicer or
the transfer and assumption of servicing by the Master Servicer
with respect to
any Servicing Agreement (including, without limitation, (i) all
legal costs and
expenses and all due diligence costs and expenses associated with
an evaluation
of the potential termination of the Servicer as a result of an
event of default
by such Servicer and (ii) all costs and expenses associated with
the complete
transfer of servicing, including all servicing files and all
servicing data and
the completion, correction or manipulation of such servicing data
as may be
required by the successor servicer to correct any errors or
insufficiencies in
the servicing data or otherwise to enable the successor service to
service the
Mortgage Loans in accordance with the related Servicing Agreement)
are not fully
and timely reimbursed by the terminated Servicer, the Master
Servicer shall be
entitled to reimbursement of such costs and expenses from the
Master Servicer
Collection Account.
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(d) The Master Servicer shall require each Servicer to comply with
the
remittance requirements and other obligations set forth in the
related Servicing
Agreement.
(e) The Master Servicer shall use its best efforts to cause
each
Servicer of a Cooperative Loan to timely file continuation
statements with
regard to each financing statement and assignment relating to
Cooperative Loans
as to which the related Cooperative Apartment is located outside of
the State of
New York.
(f) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer,
if any, that
it replaces.
Section 3.04 FIDELITY
BOND.
The Master Servicer, at its expense, shall maintain in effect a
blanket
fidelity bond and an errors and omissions insurance policy,
affording coverage
with respect to all directors, officers, employees and other
Persons acting on
such Master Servicer's behalf, and covering errors and omissions in
the
performance of the Master Servicer's obligations hereunder. The
errors and
omissions insurance policy and the fidelity bond shall be in such
form and
amount generally acceptable for entities serving as master
servicers or
trustees.
Section 3.05 POWER TO
ACT; PROCEDURES.
The Master Servicer shall master service the Mortgage Loans and
shall
have full power and authority, subject to the REMIC Provisions and
the
provisions of Article X hereof, to do any and all things that it
may deem
necessary or desirable in connection with the master servicing
and
administration of the Mortgage Loans, including but not limited to
the power and
authority (i) to execute and deliver, on behalf of the
Certificateholders and
the Trustee, customary consents or waivers and other instruments
and documents,
(ii) to consent to transfers of any Mortgaged Property and
assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion
of the ownership of the Mortgaged Property securing any Mortgage
Loan, in each
case, in accordance with the provisions of this Agreement and the
related
Servicing Agreement, as applicable; provided, however, that the
Master Servicer
shall not (and, consistent with its responsibilities under Section
3.03, shall
not permit any Servicer to) knowingly or intentionally take any
action, or fail
to take (or fail to cause to be taken) any action reasonably within
its control
and the scope of duties more specifically set forth herein, that,
under the
REMIC Provisions, if taken or not taken, as the case may be, would
cause REMIC
I, REMIC II or REMIC III to fail to qualify as a REMIC or result in
the
imposition of a tax upon the Trust Fund (including but not limited
to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the
Master Servicer has received an Opinion of Counsel (but not at the
expense of
the Master Servicer) to the effect that the contemplated action
would not cause
any REMIC to fail to qualify as a REMIC or result in the imposition
of a tax
upon any REMIC. The Trustee shall furnish the Master Servicer, upon
written
request from a Servicing Officer, with any powers of attorney
empowering the
Master Servicer or any Servicer to execute and deliver instruments
of
satisfaction or cancellation, or of partial or full release or
discharge, and to
foreclose upon or otherwise liquidate Mortgaged Property, and to
appeal,
prosecute or defend in any court action relating to the Mortgage
Loans or the
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Mortgaged Property, in accordance with the applicable Servicing
Agreement and
this Agreement, and the Trustee shall execute and deliver such
other documents,
as the Master Servicer may request, to enable the Master Servicer
to master
service and administer the Mortgage Loans and carry out its duties
hereunder, in
each case in accordance with Accepted Master Servicing Practices
(and the
Trustee shall have no liability for misuse of any such powers of
attorney by the
Master Servicer or any Servicer). If the Master Servicer or the
Trustee has been
advised that it is likely that the laws of the state in which
action is to be
taken prohibit such action if taken in the name of the Trustee or
that the
Trustee would be adversely affected under the "doing business" or
tax laws of
such state if such action is taken in its name, the Master Servicer
shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 9.11
hereof. In the performance of its duties hereunder, the Master
Servicer shall be
an independent contractor and shall not, except in those instances
where it is
taking action in the name of the Trustee, be deemed to be the agent
of the
Trustee.
Section 3.06
DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
To the extent provided in the applicable Servicing Agreement, to
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the
Master
Servicer shall cause the Servicers to enforce such clauses in
accordance with
the applicable Servicing Agreement. If applicable law prohibits the
enforcement
of a due-on-sale clause or such clause is otherwise not enforced in
accordance
with the applicable Servicing Agreement, and, as a consequence, a
Mortgage Loan
is assumed, the original Mortgagor may be released from liability
in accordance
with the applicable Servicing Agreement.
Section 3.07 RELEASE OF
MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Mortgage
Loan, or
the receipt by any Servicer of a notification that payment in full
has been
escrowed in a manner customary for such purposes for payment to
Certificateholders on the next Distribution Date, the Servicer
will, if required
under the applicable Servicing Agreement, promptly furnish to the
Custodian, on
behalf of the Trustee, two copies of a certification substantially
in the form
of Exhibit D hereto signed by a Servicing Officer or in a mutually
agreeable
electronic format which will, in lieu of a signature on its face,
originate from
a Servicing Officer (which certification shall include a statement
to the effect
that all amounts received in connection with such payment that are
required to
be deposited in the Protected Account maintained by the applicable
Servicer
pursuant to Section 4.01 or by the applicable Servicer pursuant to
its Servicing
Agreement have been or will be so deposited) and shall request that
the
Custodian, on behalf of the Trustee, deliver to the applicable
Servicer the
related Mortgage File. Upon receipt of such certification and
request, the
Custodian, on behalf of the Trustee, shall promptly release the
related Mortgage
File to the applicable Servicer and the Trustee and Custodian shall
have no
further responsibility with regard to such Mortgage File. Upon any
such payment
in full, each Servicer is authorized, to give, as agent for the
Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of
satisfaction (or assignment of mortgage without recourse) regarding
the
Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or
assignment, as the case may be, shall be delivered to the Person or
Persons
entitled thereto against receipt therefor of such payment, it being
understood
and agreed that no expenses incurred in connection with such
instrument of
satisfaction or assignment, as the case may be, shall be chargeable
to the
Protected Account.
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(b) From
time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the
applicable Servicing
Agreement, the Trustee shall execute such documents as shall be
prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in
form
reasonably acceptable to the Trustee) and as are necessary to the
prosecution of
any such proceedings. The Custodian, on behalf of the Trustee,
shall, upon the
request of a Servicer or the Master Servicer, and delivery to the
Custodian, on
behalf of the Trustee, of two copies of a request for release
signed by a
Servicing Officer substantially in the form of Exhibit D (or in a
mutually
agreeable electronic format which will, in lieu of a signature on
its face,
originate from a Servicing Officer), release the related Mortgage
File held in
its possession or control to the Servicer or the Master Servicer,
as applicable.
Such trust receipt shall obligate the Servicer or the Master
Servicer to return
the Mortgage File to the Custodian on behalf of the Trustee, when
the need
therefor by the Servicer or the Master Servicer no longer exists
unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate
of a Servicing Officer similar to that hereinabove specified, the
Mortgage File
shall be released by the Custodian, on behalf of the Trustee, to
the Servicer or
the Master Servicer.
Section 3.08 DOCUMENTS,
RECORDS AND FUNDS IN POSSESSION OF MASTER SERVICER
TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the
extent
required by the related Servicing Agreement) shall transmit to the
Trustee or
Custodian such documents and instruments coming into the possession
of the
Master Servicer or such Servicer from time to time as are required
by the terms
hereof, or in the case of the Servicers, the applicable Servicing
Agreement, to
be delivered to the Trustee or Custodian. Any funds received by the
Master
Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are
collected by the Master Servicer or by a Servicer as Liquidation
Proceeds or
Insurance Proceeds in respect of any Mortgage Loan shall be held
for the benefit
of the Trustee and the Certificateholders subject to the Master
Servicer's right
to retain or withdraw from the Master Servicer Collection Account
the Master
Servicing Compensation and other amounts provided in this
Agreement, and to the
right of each Servicer to retain its Servicing Fee and other
amounts as provided
in the applicable Servicing Agreement. The Master Servicer shall,
and (to the
extent provided in the applicable Servicing Agreement) shall cause
each Servicer
to, provide access to information and documentation regarding the
Mortgage Loans
to the Trustee, its agents and accountants at any time upon
reasonable request
and during normal business hours, and to Certificateholders that
are savings and
loan associations, banks or insurance companies, the Office of
Thrift
Supervision, the FDIC and the supervisory agents and examiners of
such Office
and Corporation or examiners of any other federal or state banking
or insurance
regulatory authority if so required by applicable regulations of
the Office of
Thrift Supervision or other regulatory authority, such access to be
afforded
without charge but only upon reasonable request in writing and
during normal
business hours at the offices of the Master Servicer designated by
it. In
fulfilling such a request the Master Servicer shall not be
responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under
the
control of, the Master Servicer, in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from
Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer for and
on behalf of
the Trustee and the Certificateholders and shall be and remain the
sole and
exclusive property of the Trustee; provided, however, that the
Master
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Servicer and each Servicer shall be entitled to setoff against, and
deduct from,
any such funds any amounts that are properly due and payable to the
Master
Servicer or such Servicer under this Agreement or the applicable
Servicing
Agreement.
Section 3.09 STANDARD
HAZARD INSURANCE AND FLOOD INSURANCE POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce
any
obligation of the Servicers under the related Servicing Agreements
to maintain
or cause to be maintained standard fire and casualty insurance and,
where
applicable, flood insurance, all in accordance with the provisions
of the
related Servicing Agreements. It is understood and agreed that such
insurance
shall be with insurers meeting the eligibility requirements set
forth in the
applicable Servicing Agreement and that no earthquake or other
additional
insurance is to be required of any Mortgagor or to be maintained on
property
acquired in respect of a defaulted loan, other than pursuant to
such applicable
laws and regulations as shall at any time be in force and as shall
require such
additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by
the
Servicers or the Master Servicer, or by any Servicer, under any
insurance
policies (other than amounts to be applied to the restoration or
repair of the
property subject to the related Mortgage or released to the
Mortgagor in
accordance with the applicable Servicing Agreement) shall be
deposited into the
Master Servicer Collection Account, subject to withdrawal pursuant
to Section
4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicer in
maintaining any such insurance if the Mortgagor defaults in its
obligation to do
so shall be added to the amount owing under the Mortgage Loan where
the terms of
the Mortgage Loan so permit; provided, however, that the addition
of any such
cost shall not be taken into account for purposes of calculating
the
distributions to be made to Certificateholders and shall be
recoverable by the
Master Servicer or such Servicer pursuant to Section 4.02 and
4.03.
Section 3.10
PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall (to the extent provided in the
applicable
Servicing Agreement) cause the related Servicer to, prepare and
present on
behalf of the Trustee and the Certificateholders all claims under
the Insurance
Policies and take such actions (including the negotiation,
settlement,
compromise or enforcement of the insured's claim) as shall be
necessary to
realize recovery under such policies. Any proceeds disbursed to the
Master
Servicer (or disbursed to a Servicer and remitted to the Master
Servicer) in
respect of such policies, bonds or contracts shall be promptly
deposited in the
Master Servicer Collection Account upon receipt, except that any
amounts
realized that are to be applied to the repair or restoration of the
related
Mortgaged Property as a condition precedent to the presentation of
claims on the
related Mortgage Loan to the insurer under any applicable Insurance
Policy need
not be so deposited (or remitted).
Section 3.11
MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to
the
extent such action is prohibited under the applicable Servicing
Agreement) to
take, any action that would result in noncoverage under any
applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of
the Master
Servicer or such Servicer, would have been covered
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thereunder. The Master Servicer shall use its best reasonable
efforts to cause
each Servicer (to the extent required under the related Servicing
Agreement) to
keep in force and effect (to the extent that the Mortgage Loan
requires the
Mortgagor to maintain such insurance), primary mortgage insurance
applicable to
each Mortgage Loan in accordance with the provisions of this
Agreement and the
related Servicing Agreement, as applicable. The Master Servicer
shall not, and
shall not permit any Servicer (to the extent required under the
related
Servicing Agreement) to, cancel or refuse to renew any such Primary
Mortgage
Insurance Policy that is in effect at the date of the initial
issuance of the
Mortgage Note and is required to be kept in force hereunder except
in accordance
with the provisions of this Agreement and the related Servicing
Agreement, as
applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer
(to the extent required under the related Servicing Agreement) to
present, on
behalf of the Trustee and the Certificateholders, claims to the
insurer under
any Primary Mortgage Insurance Policies and, in this regard, to
take such
reasonable action as shall be necessary to permit recovery under
any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to
Section 4.01 and 4.02, any amounts collected by the Master Servicer
or any
Servicer under any Primary Mortgage Insurance Policies shall be
deposited in the
Master Servicer Collection Account, subject to withdrawal pursuant
to Sections
4.02 and 4.03.
Section 3.12 TRUSTEE TO
RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES AND
DOCUMENTS.
The Trustee (or the Custodian, as directed by the Trustee),
shall
retain possession and custody of the originals (to the extent
available) of any
Primary Mortgage Insurance Policies, or certificate of insurance if
applicable,
and any certificates of renewal as to the foregoing as may be
issued from time
to time as contemplated by this Agreement. Until all amounts
distributable in
respect of the Certificates have been distributed in full and the
Master
Servicer otherwise has fulfilled its obligations under this
Agreement, the
Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain
possession and custody of each Mortgage File in accordance with and
subject to
the terms and conditions of this Agreement. The Master Servicer
shall promptly
deliver or cause to be delivered to the Trustee (or the Custodian,
as directed
by the Trustee), upon the execution or receipt thereof the
originals of any
Primary Mortgage Insurance Policies, any certificates of renewal,
and such other
documents or instruments that constitute portions of the Mortgage
File that come
into the possession of the Master Servicer from time to time.
Section 3.13
REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Master Servicer shall cause each Servicer (to the extent
required
under the related Servicing Agreement) to foreclose upon, repossess
or otherwise
comparably convert the ownership of Mortgaged Properties securing
such of the
Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent
payments, all
in accordance with the applicable Servicing Agreement.
Section 3.14
COMPENSATION FOR THE MASTER SERVICER.
The Master Servicer will be entitled to all income and gain
realized
from any investment of funds in the Distribution Account and the
Master Servicer
Collection Account, pursuant to
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Article IV, for the performance of its activities hereunder.
Servicing
compensation in the form of assumption fees, if any, late payment
charges, as
collected, if any, or otherwise (but not including any prepayment
premium or
penalty) shall be retained by the applicable Servicer and shall not
be deposited
in the Protected Account. The Master Servicer shall be required to
pay all
expenses incurred by it in connection with its activities hereunder
and shall
not be entitled to reimbursement therefor except as provided in
this Agreement.
Section 3.15 REO
PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO
Property
in respect of any related Mortgage Loan, the deed or certificate of
sale shall
be issued to the Trustee, or to its nominee, on behalf of the
related
Certificateholders. The Master Servicer shall, to the extent
provided in the
applicable Servicing Agreement, cause the applicable Servicer to
sell, any REO
Property as expeditiously as possible and in accordance with the
provisions of
this Agreement and the related Servicing Agreement, as applicable.
Pursuant to
its efforts to sell such REO Property, the Master Servicer shall
cause the
applicable Servicer to protect and conserve, such REO Property in
the manner and
to the extent required by the applicable Servicing Agreement, in
accordance with
the REMIC Provisions and in a manner that does not result in a tax
on "net
income from foreclosure property" or cause such REO Property to
fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code.
(b) The Master Servicer shall, to the extent required by the
related
Servicing Agreement, cause the applicable Servicer to deposit all
funds
collected and received in connection with the operation of any REO
Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the
final
disposition of any REO Property, shall be entitled to reimbursement
for any
related unreimbursed Monthly Advances and other unreimbursed
advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in
connection with
the final disposition of such REO Property; provided, that any such
unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be
reimbursed or paid,
as the case may be, prior to final disposition, out of any net
rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement,
the
Liquidation Proceeds from the final disposition of the REO
Property, net of any
payment to the Master Servicer and the applicable Servicer as
provided above
shall be deposited in the Protected Account on or prior to the
Determination
Date in the month following receipt thereof and be remitted by wire
transfer in
immediately available funds to the Master Servicer for deposit into
the related
Master Servicer Collection Account on the next succeeding Servicer
Remittance
Date.
Section 3.16 ANNUAL
STATEMENT AS TO COMPLIANCE.
(a) The Master Servicer will deliver to the Trustee, not later
than
February 28 of each calendar year beginning in 2007, an Officers'
Certificate
(an "Annual Statement of Compliance") stating, as to each signatory
thereof,
that (i) a review of the activities of the Master Servicer during
the preceding
calendar year and of performance under this Agreement or other
applicable
servicing agreement has been made under such officers' supervision
and (ii) to
the
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best of such officers' knowledge, based on such review, the Master
Servicer has
fulfilled all of its obligations under this Agreement or other
applicable
servicing agreement in all material respects throughout such year,
or, if there
has been a failure to fulfill any such obligation in any material
respect,
specifying each such failure known to such officer and the nature
and status of
cure provisions thereof. Such Annual Statement of Compliance shall
contain no
restrictions or limitations on its use. In the event that the
Master Servicer
has delegated any servicing responsibilities with respect to the
Mortgage Loans
to a subservicer, the Master Servicer shall deliver a similar
Annual Statement
of Compliance by that subservicer to the Trustee as described above
as and when
required with respect to the Master Servicer.
(b) If the Master Servicer cannot deliver the related Annual
Statement
of Compliance by February 28th of such year, the Trustee, at its
sole option,
may permit a cure period for the Master Servicer to deliver such
Annual
Statement of Compliance, but in no event later than March 10th of
such year.
(c) Failure of the Master Servicer to timely comply with this
Section
3.16 shall be deemed an Event of Default, and the Trustee may, in
addition to
whatever rights the Trustee may have under this Agreement and at
law or equity
or to damages, including injunctive relief and specific
performance, upon notice
immediately terminate all the rights and obligations of the Master
Servicer
under this Agreement and in and to the Mortgage Loans and the
proceeds thereof
without compensating the Master Servicer for the same. This
paragraph shall
supersede any other provision in this Agreement or any other
agreement to the
contrary.
Section 3.17
ASSESSMENTS OF COMPLIANCE AND ATTESTATION REPORTS.
On and after January 1, 2006, the Master Servicer shall service
and
administer the Mortgage Loans in accordance with all applicable
requirements of
the Servicing Criteria. Pursuant to Rules 13a-18 and 15d-18 of the
Exchange Act
and Item 1123 of Regulation AB, the Master Servicer shall deliver
to the Trustee
on or before February 28 of each calendar year beginning in 2007, a
report
regarding the Master Servicer's assessment of compliance (an
"Assessment of
Compliance") with the Servicing Criteria during the preceding
calendar year. The
Assessment of Compliance must be reasonably satisfactory to the
Trustee, and as
set forth in Regulation AB, the Assessment of Compliance must
contain the
following:
(a) A statement by such officer of its responsibility for
assessing
compliance with the Servicing Criteria applicable to the Master
Servicer;
(b) A statement by such officer that such officer used the
Servicing
Criteria attached as Exhibit K hereto, and which will also be
attached to the
Assessment of Compliance, to assess compliance with the Servicing
Criteria
applicable to the Master Servicer;
(c) An assessment by such officer of the Master Servicer's
compliance
with the applicable Servicing Criteria for the period consisting of
the
preceding calendar year, including disclosure of any material
instance of
noncompliance with respect thereto during such period, which
assessment shall be
based on the activities it performs with respect to asset-backed
securities
transactions taken as a whole involving the Master Servicer, that
are backed by
the same asset type as the Mortgage Loans;
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(d) A statement that a registered public accounting firm has issued
an
attestation report on the Master Servicer's Assessment of
Compliance for the
period consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are
not
applicable to the Master Servicer, which statement shall be based
on the
activities it performs with respect to asset-backed securities
transactions
taken as a whole involving the Master Servicer, that are backed by
the same
asset type as the Mortgage Loans.
Such report at a minimum shall address each of the Servicing
Criteria
specified on Exhibit K hereto which are indicated as applicable to
the Master
Servicer.
On or before February 28 of each calendar year beginning in 2007,
the
Master Servicer shall furnish to the Trustee a report (an
"Attestation Report")
by a registered public accounting firm that attests to, and reports
on, the
Assessment of Compliance made by the Company, as required by Rules
13a-18 and
15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which
Attestation
Report must be made in accordance with standards for attestation
reports issued
or adopted by the Public Company Accounting Oversight Board.
The Master Servicer shall cause any subservicer, and each
subcontractor
determined by the Master Servicer to be "participating in the
servicing
function" within the meaning of Item 1122 of Regulation AB, to
deliver to the
Trustee and the Depositor an Assessment of Compliance and
Attestation Report as
and when provided above.
Such Assessment of Compliance, as to any subservicer, shall at
a
minimum address each of the Servicing Criteria specified on Exhibit
K hereto
which are indicated as applicable to any "primary servicer."
Notwithstanding the
foregoing, as to any subcontractor, an Assessment of Compliance is
not required
to be delivered unless it is required as part of a Form 10-K with
respect to the
Trust Fund.
If the Master Servicer cannot deliver any Assessment of Compliance
or
Attestation Report by February 28th of such year, the Trustee, at
its sole
option, may permit a cure period for the Master Servicer to deliver
such
Assessment of Compliance or Attestation Report, but in no event
later than March
10th of such year.
Failure of the Master Servicer to timely comply with this Section
3.17
shall be deemed an Event of Default, and the Trustee may, in
addition to
whatever rights the Trustee may have under this Agreement and at
law or equity
or to damages, including injunctive relief and specific
performance, upon notice
immediately terminate all the rights and obligations of the Master
Servicer
under this Agreement and in and to the Mortgage Loans and the
proceeds thereof
without compensating the Master Servicer for the same. This
paragraph shall
supersede any other provision in this Agreement or any other
agreement to the
contrary.
The Trustee shall also provide an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a
minimum address
each of the Servicing Criteria specified on Exhibit K hereto which
are indicated
as applicable to the "trustee" or "securities administrator." In
addition, the
Trustee shall cause the Custodian to deliver to the Trustee and the
Depositor an
Assessment of Compliance and Attestation Report, as and when
provided
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above, which shall at a minimum address each of the Servicing
Criteria specified
on Exhibit K hereto which are indicated as applicable to a
"custodian."
Notwithstanding the foregoing, as to any Custodian, an Assessment
of Compliance
is not required to be delivered unless it is required as part of a
Form 10-K
with respect to the Trust Fund
Section 3.18
[Reserved].
Section 3.19 PAYMENT TO
MORTGAGE LOAN DEPOSITOR.
On the Closing Date, the Mortgage Loan Seller will receive from
the
Depositor a payment of $5,000.
Section 3.20 UCC.
The Depositor shall inform the Trustee in writing of any
Uniform
Commercial Code financing statements that were filed on the Closing
Date in
connection with the Trust with stamped recorded copies of such
financing
statements to be delivered to the Trustee promptly upon receipt by
the
Depositor. The Trustee agrees to monitor and notify the Depositor
if any
continuation statements for such Uniform Commercial Code financing
statements
need to be filed. If directed by the Depositor in writing, the
Trustee will file
any such continuation statements solely at the expense of the
Depositor. The
Depositor shall file any financing statements or amendments thereto
required by
any change in the Uniform Commercial Code.
Section 3.21 OPTIONAL
PURCHASE OF DEFAULTED MORTGAGE LOANS.
(a) With respect to any Mortgage Loan which as of the first day of
a
Calendar Quarter is delinquent in payment by 90 days or more or is
an REO
Property, the Mortgage Loan Seller shall have the right to purchase
such
Mortgage Loan from the Trust at a price equal to the Repurchase
Price; provided
however (i) that such Mortgage Loan is still 90 days or more
delinquent or is an
REO Property as of the date of such purchase and (ii) this purchase
option, if
not theretofore exercised, shall terminate on the date prior to the
last day of
the related Calendar Quarter. This purchase option, if not
exercised, shall not
be thereafter reinstated unless the delinquency is cured and the
Mortgage Loan
thereafter again becomes 90 days or more delinquent or becomes an
REO Property,
in which case the option shall again become exercisable as of the
first day of
the related Calendar Quarter.
(b) If at any time the Mortgage Loan Seller remits to the
Master
Servicer a payment for deposit in the Master Servicer Collection
Account
covering the amount of the Repurchase Price for such a Mortgage
Loan, and the
Mortgage Loan Seller provides to the Trustee a certification signed
by a
Servicing Officer stating that the amount of such payment has been
deposited in
the Master Servicer Collection Account, then the Trustee shall
execute the
assignment of such Mortgage Loan to the Mortgage Loan Seller at the
request of
the Mortgage Loan Seller without recourse, representation or
warranty and the
Mortgage Loan Seller shall succeed to all of the Trustee's right,
title and
interest in and to such Mortgage Loan, and all security and
documents relative
thereto. Such assignment shall be an assignment outright and not
for security.
The Mortgage Loan Seller will thereupon own such Mortgage, and all
such security
and documents, free of any further obligation to the Trustee or
the
Certificateholders with respect thereto.
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Section 3.22 SURETY
BOND.
If the Additional Collateral Servicer informs the Trustee that
a
Required Surety Payment is payable pursuant to the Surety Bond,
with respect to
any Additional Collateral Mortgage Loan, the Trustee shall promptly
complete the
notice in the form of Attachment 1 to the Surety Bond and shall
return such
notice to the Additional Collateral Servicer for submission to the
Surety Bond
Issuer. Anything to the contrary notwithstanding, in the event that
the Surety
Bond Issuer or the express terms of the Surety Bond requires such
notice to be
submitted directly by the Trustee, the Trustee shall submit such
notice directly
to the Surety Bond Issuer. The Trustee hereby agrees to cooperate
with the
Additional Collateral Servicer in taking all necessary action to
realize on the
Surety Bond, including, without limitation, executing any documents
or notices
prepared by the Additional Collateral Servicer, necessary to
collect any
Required Surety Payment. Any Required Surety Payment received by
the Trustee
shall be remitted to the Master Servicer. The Master Servicer shall
deposit such
Required Surety Payment in the Master Servicer Collection Account
and shall
distribute such Required Surety Payment, or the proceeds thereof,
in accordance
with the provisions of Section 4.03. The Trustee shall incur no
liability in
connection with the presentment of any notices or claims on the
Surety Bond made
by it at the direction of the Additional Collateral Servicer.
Section 3.23 Books and
Records.
The Master Servicer shall be responsible for maintaining, and
shall
maintain, a complete set of books and records for the Mortgage
Loans which shall
be appropriately identified in the Master Servicer's computer
system to clearly
reflect the ownership of the Mortgage Loans by the Trust. In
particular, the
Master Servicer shall maintain in its possession, available for
inspection by
the Trustee and shall deliver to the Trustee upon demand, evidence
of compliance
with all federal, state and local laws, rules and regulations. To
the extent
that original documents are not required for purposes of
realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by
the Master
Servicer may be in the form of microfilm or microfiche or such
other reliable
means of recreating original documents, including, but not limited
to, optical
imagery techniques so long as the Master Servicer complies with the
requirements
of Accepted Servicing Practices.
The Master Servicer shall maintain with respect to each Mortgage
Loan
and shall make available for inspection by the Trustee the related
servicing
file during the time such Mortgage Loan is subject to this
Agreement and
thereafter in accordance with applicable law.
Payments on the Mortgage Loans, including any payoffs, made in
accordance with the related Mortgage File will be entered in the
Master
Servicer's set of books and records no more than two business days
after receipt
and identification, and allocated to principal or interest as
specified in the
related Mortgage File.
ARTICLE IV
ACCOUNTS
Section 4.01 PROTECTED
ACCOUNTS.
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(a) The Master Servicer shall enforce the obligation of each
Servicer
to establish and maintain a Protected Account in accordance with
the applicable
Servicing Agreement, with records to be kept with respect thereto
on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited
within 48
hours (or as of such other time specified in the related Servicing
Agreement) of
receipt, all collections of principal and interest on any Mortgage
Loan and any
REO Property received by a Servicer, including Principal
Prepayments, Insurance
Proceeds, Liquidation Proceeds, and advances made from the
Servicer's own funds
(less servicing compensation as permitted by the applicable
Servicing Agreement
in the case of any Servicer) and all other amounts to be deposited
in the
Protected Account. The Servicer is hereby authorized to make
withdrawals from
and deposits to the related Protected Account for purposes required
or permitted
by this Agreement. To the extent provided in the related Servicing
Agreement,
the Protected Account shall be held by a Designated Depository
Institution and
segregated on the books of such institution in the name of the
Trustee for the
benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement,
amounts
on deposit in a Protected Account may be invested in Permitted
Investments in
the name of the Trustee for the benefit of Certificateholders and,
except as
provided in the preceding paragraph, not commingled with any other
funds. Such
Permitted Investments shall mature, or shall be subject to
redemption or
withdrawal, no later than the date on which such funds are required
to be
withdrawn for deposit in the Master Servicer Collection Account,
and shall be
held until required for such deposit. The income earned from
Permitted
Investments made pursuant to this Section 4.01 shall be paid to the
related
Servicer under the applicable Servicing Agreement, and the risk of
loss of
moneys required to be distributed to the Certificateholders
resulting from such
investments shall be borne by and be the risk of the related
Servicer. The
related Servicer (to the extent provided in the Servicing
Agreement) shall
deposit the amount of any such loss in the Protected Account within
two Business
Days of receipt of notification of such loss but not later than the
second
Business Day prior to the Distribution Date on which the moneys so
invested are
required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement
and
subject to this Article IV, on or before each Servicer Remittance
Date, the
related Servicer shall withdraw or shall cause to be withdrawn from
its
Protected Accounts and shall immediately deposit or cause to be
deposited in the
Master Servicer Collection Account amounts representing the
following
collections and payments (other than with respect to principal of
or interest on
the Mortgage Loans due on or before the Cut-off Date) with respect
to each Loan
Group:
(i) Scheduled Payments on the Mortgage Loans received or any
related portion thereof advanced by such Servicer pursuant to
its
Servicing Agreement which were due on or before the related Due
Date,
net of the amount thereof comprising its Servicing Fee or any fees
with
respect to any lender-paid primary mortgage insurance policy;
(ii) Full Principal Prepayments and any Liquidation Proceeds
received by such Servicer with respect to the Mortgage Loans in
the
related Prepayment Period, with interest to the date of prepayment
or
liquidation, net of the amount thereof comprising its Servicing
Fee;
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(iii) Partial Principal Prepayments received by such Servicer
for the Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make
remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master
Servicer or
a Servicer for Monthly Advances which have been recovered by
subsequent
collections from the related Mortgagor; to remove amounts deposited
in error; to
remove fees, charges or other such amounts deposited on a temporary
basis; or to
clear and terminate the account at the termination of this
Agreement in
accordance with Section 10.01. As provided in Sections 4.01(c) and
4.02(b)
certain amounts otherwise due to the Servicers may be retained by
them and need
not be deposited in the Master Servicer Collection Account.
Section 4.02 MASTER
SERVICER COLLECTION ACCOUNT.
(a) The Master Servicer shall establish and maintain in the name of
the
Trustee, for the benefit of the Certificateholders, the Master
Servicer
Collection Account as a segregated trust account or accounts. The
Master
Servicer Collection Account shall be an Eligible Account. The
Master Servicer
will deposit in the Master Servicer Collection Account as
identified by the
Master Servicer and as received by the Master Servicer, the
following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any
Insurance Proceeds or Net Liquidation Proceeds
received by or on behalf of the Master Servicer or which were
not
deposited in a Protected Account;
(iv) The Repurchase Price with respect to any Mortgage Loans
purchased by the Mortgage Loan Seller pursuant to the Mortgage
Loan
Purchase Agreement or Sections 2.02 or 2.03 hereof, any amounts
which
are to be treated pursuant to Section 2.04 of this Agreement as
the
payment of a Repurchase Price in connection with the tender of
a
Substitute Mortgage Loan by the Mortgage Loan Seller, the
Repurchase
Price with respect to any Mortgage Loans purchased by the Mortgage
Loan
Seller pursuant to Section 3.21, and all proceeds of any Mortgage
Loans
or property acquired with respect thereto repurchased by the
Depositor
or its designee pursuant to Section 10.01;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer
Collection
Account pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection
Account
shall be held by the Master Servicer in the name of the Trustee in
trust for the
benefit of the Certificateholders in accordance with the terms and
provisions of
this Agreement. The requirements for crediting the Master Servicer
Collection
Account or the Distribution Account shall be exclusive, it
being
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understood and agreed that, without limiting the generality of the
foregoing,
payments in the nature of (i) prepayment or late payment charges or
assumption,
tax service, statement account or payoff, substitution,
satisfaction, release
and other like fees and charges and (ii) the items enumerated in
Subsections
4.05(a)(i), (ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xi)
and (xii),
need not be credited by the Master Servicer or the related Servicer
to the
Distribution Account or the Master Servicer Collection Account, as
applicable.
In the event that the Master Servicer shall deposit or cause to be
deposited to
the Distribution Account any amount not required to be credited
thereto, the
Trustee, upon receipt of a written request therefor signed by a
Servicing
Officer of the Master Servicer, shall promptly transfer such amount
to the
Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The amount at any time credited to the Master Servicer
Collection
Account may be invested, in the name of the Trustee, or its
nominee, for the
benefit of the Certificateholders, in Permitted Investments as
directed by
Master Servicer. All Permitted Investments shall mature or be
subject to
redemption or withdrawal on or before, and shall be held until, the
next
succeeding Distribution Account Deposit Date. Any and all
investment earnings on
amounts on deposit in the Master Servicer Account from time to time
shall be for
the account of the Master Servicer. The Master Servicer from time
to time shall
be permitted to withdraw or receive distribution of any and all
investment
earnings from the Master Servicer Account. The risk of loss of
moneys required
to be distributed to the Certificateholders resulting from such
investments
shall be borne by and be the risk of the Master Servicer. The
Master Servicer
shall deposit the amount of any such loss in the Master Servicer
Collection
Account within two Business Days of receipt of notification of such
loss but not
later than the second Business Day prior to the Distribution Date
on which the
moneys so invested are required to be distributed to the
Certificateholders.
Section 4.03 PERMITTED
WITHDRAWALS AND TRANSFERS FROM THE MASTER SERVICER
COLLECTION ACCOUNT.
(a) The Master Servicer will, from time to time on demand of a
Servicer
or the Securities Administrator, make or cause to be made such
withdrawals or
transfers from the Master Servicer Collection Account as the Master
Servicer has
designated for such transfer or withdrawal pursuant to this
Agreement and the
related Servicing Agreement. The Master Servicer may clear and
terminate the
Master Servicer Collection Account pursuant to Section 10.01 and
remove amounts
from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from
the
Master Servicer Collection Account (i) any expenses recoverable by
the Trustee,
the Master Servicer or the Securities Administrator or the
Custodian pursuant to
Sections 3.03, 7.04 and 9.05 and (ii) any amounts payable to the
Master Servicer
as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit
Date,
the Master Servicer shall deposit in the Distribution Account (or
remit to the
Trustee for deposit therein) any Monthly Advances required to be
made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution
Account
Deposit Date, the Master Servicer will transfer all Available Funds
on deposit
in the Master Servicer
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Collection Account with respect to the related Distribution Date to
the Trustee
for deposit in the Distribution Account.
Section 4.04
DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the
Distribution Account as
a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held
by
the Trustee in the name of the Trustee in trust for the benefit of
the
Certificateholders in accordance with the terms and provisions of
this
Agreement.
(c) The Distribution Account shall constitute a trust account of
the
Trust Fund segregated on the books of the Trustee and held by the
Trustee in
trust in its Corporate Trust Office, and the Distribution Account
and the funds
deposited therein shall not be subject to, and shall be protected
from, all
claims, liens, and encumbrances of any creditors or depositors of
the Trustee or
the Master Servicer (whether made directly, or indirectly through a
liquidator
or receiver of the Trustee or the Master Servicer). The
Distribution Account
shall be an Eligible Account. The amount at any time credited to
the
Distribution Account shall be (i) held in cash and fully insured by
the FDIC to
the maximum coverage provided thereby or (ii) invested in the name
of the
Trustee, in such Permitted Investments selected by the Master
Servicer or
deposited in demand deposits with such depository institutions as
selected by
the Master Servicer, provided that time deposits of such depository
institutions
would be a Permitted Investment. All Permitted Investments shall
mature or be
subject to redemption or withdrawal on or before, and shall be held
until, the
next succeeding Distribution Date if the obligor for such Permitted
Investment
is the Trustee or, if such obligor is any other Person, the
Business Day
preceding such Distribution Date. All investment earnings on
amounts on deposit
in the Distribution Account or benefit from funds uninvested
therein from time
to time shall be for the account of the Master Servicer. The Master
Servicer
shall be permitted to withdraw or receive distribution of any and
all investment
earnings from the Distribution Account on each Distribution Date.
If there is
any loss on a Permitted Investment or demand deposit, the Master
Servicer shall
remit the amount of the loss to the Trustee who shall deposit such
amount in the
Distribution Account. With respect to the Distribution Account and
the funds
deposited therein, the Master Servicer shall take such action as
may be
necessary to ensure that the Certificateholders shall be entitled
to the
priorities afforded to such a trust account (in addition to a claim
against the
estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e), and
applicable
regulations pursuant thereto, if applicable, or any applicable
comparable state
statute applicable to state chartered banking corporations.
Section 4.05 PERMITTED
WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Trustee will, from time to time on demand of the Master
Servicer or the Securities Administrator, make or cause to be made
such
withdrawals or transfers from the Distribution Account as the
Master Servicer
has designated for such transfer or withdrawal pursuant to this
Agreement and
the Servicing Agreements or as the Securities Administrator has
instructed
hereunder for the following purposes (limited in the case of
amounts due the
Master Servicer to those not withdrawn from the Master Servicer
Collection
Account in accordance with the terms of this Agreement):
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(i) to reimburse the Master Servicer or any Servicer for any
Monthly Advance of its own funds, the right of the Master Servicer
or a
Servicer to reimbursement pursuant to this subclause (i) being
limited
to amounts received on a particular Mortgage Loan (including, for
this
purpose, the Repurchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late payments or recoveries
of
the principal of or interest on such Mortgage Loan respecting
which
such Monthly Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a
particular
Mortgage Loan for amounts expended by the Master Servicer or
such
Servicer in good faith in connection with the restoration of
the
related Mortgaged Property which was damaged by an Uninsured Cause
or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for
insured
expenses incurred with respect to such Mortgage Loan and to
reimburse
the Master Servicer or such Servicer from Liquidation Proceeds from
a
particular Mortgage Loan for Liquidation Expenses incurred with
respect
to such Mortgage Loan; provided that the Master Servicer shall not
be
entitled to reimbursement for Liquidation Expenses with respect to
a
Mortgage Loan to the extent that (i) any amounts with respect to
such
Mortgage Loan were paid as Excess Liquidation Proceeds pursuant
to
clause (xi) of this Subsection 4.03 (a) to the Master Servicer;
and
(ii) such Liquidation Expenses were not included in the computation
of
such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as
appropriate, from Liquidation Proceeds or Insurance Proceeds
received
in connection with the liquidation of any Mortgage Loan, the
amount
which it or such Servicer would have been entitled to receive
under
subclause (ix) of this Subsection 4.03(a) as servicing compensation
on
account of each defaulted scheduled payment on such Mortgage Loan
if
paid in a
timely manner by the related Mortgagor;
(v) to pay the Master Servicer or any Servicer from the
Repurchase Price for any Mortgage Loan, the amount which it or
such
Servicer would have been entitled to receive under subclause (ix)
of
this Subsection 4.03 (a) as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for
advances of funds (other than Monthly Advances) made with respect
to
the Mortgage Loans, and the right to reimbursement pursuant to
this
subclause being limited to amounts received on the related
Mortgage
Loan (including, for this purpose, the Repurchase Price
therefor,
Insurance Proceeds and Liquidation Proceeds) which represent
late
recoveries of the payments for which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any
Monthly Advance or advance, after a Realized Loss has been
allocated
with respect to the related Mortgage Loan if the Monthly Advance
or
advance has not been reimbursed pursuant to clauses (i) and
(vi);
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(viii) to pay the Master Servicer as set forth in Section
3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to
Sections
3.03, 7.04(c) and (d);
(x)
to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not
retained by the related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are
due thereto under the applicable Servicing Agreement and have not
been
retained by or paid to the Servicer, to the extent provided in
the
related Servicing Agreement;
(xii) to reimburse the Trustee, the Securities Administrator
or the Custodian for expenses, costs and liabilities incurred by
or
reimbursable to it pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant
to Section 10.01.
(b) The Master Servicer shall keep and maintain separate
accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any
reimbursement from the Distribution Account pursuant to subclauses
(i) through
(vi), inclusive, and (viii) or with respect to any such amounts
which would have
been covered by such subclauses had the amounts not been retained
by the Master
Servicer without being deposited in the Distribution Account under
Section
4.02(b).
(c) On each Distribution Date, the Trustee shall distribute the
Available Funds to the extent on deposit in the Distribution
Account for each
Loan Group to the Holders of the Certificates in accordance with
distribution
instructions provided to it by the Securities Administrator no
later than two
Business Days prior to such Distribution Date and determined by the
Securities
Administrator in accordance with Section 6.01.
ARTICLE V
CERTIFICATES
Section 5.01
CERTIFICATES.
(a) The Depository, the Depositor and the Trustee have entered into
a
Depository Agreement dated as of the Closing Date (the "Depository
Agreement").
Except for the Residual Certificates, the Private Certificates and
the
Individual Certificates and as provided in Subsection 5.01(b), the
Certificates
shall at all times remain registered in the name of the Depository
or its
nominee and at all times: (i) registration of such Certificates may
not be
transferred by the Trustee except to a successor to the Depository;
(ii)
ownership and transfers of registration of such Certificates on the
books of the
Depository shall be governed by applicable rules established by the
Depository;
(iii) the Depository may collect its usual and customary fees,
charges and
expenses from its Depository Participants; (iv) the Trustee shall
deal with the
Depository as representative of such Certificate Owners of the
respective Class
of Certificates for purposes of exercising the rights of
Certificateholders
under this Agreement, and requests and
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directions for and votes of such representative shall not be deemed
to be
inconsistent if they are made with respect to different Certificate
Owners; and
(v) the Trustee may rely and shall be fully protected in relying
upon
information furnished by the Depository with respect to its
Depository
Participants.
The Residual Certificates and the Private Certificates are
initially
Physical Certificates. If at any time the Holders of all of the
Certificates of
one or more such Classes request that the Trustee cause such Class
to become
Global Certificates, the Trustee and the Depositor will take such
action as may
be reasonably required to cause the Depository to accept such Class
or Classes
for trading if it may legally be so traded.
All transfers by Certificate Owners of such respective Classes
of
Book-Entry Certificates and any Global Certificates shall be made
in accordance
with the procedures established by the Depository Participant or
brokerage firm
representing such Certificate Owners. Each Depository Participant
shall only
transfer Book-Entry Certificates of Certificate Owners it
represents or of
brokerage firms for which it acts as agent in accordance with the
Depository's
normal procedures.
(b) If (i)(A) the Depositor advises the Trustee in writing that
the
Depository is no longer willing or able to properly discharge
its
responsibilities as Depository and (B) the Depositor is unable to
locate a
qualified successor within 30 days or (ii) the Depositor at its
option advises
the Trustee in writing that it elects to terminate the book-entry
system through
the Depository, the Trustee shall request that the Depository
notify all
Certificate Owners of the occurrence of any such event and of the
availability
of definitive, fully registered Certificates to Certificate Owners
requesting
the same. Upon surrender to the Trustee of the Certificates by the
Depository,
accompanied by registration instructions from the Depository for
registration,
the Trustee shall issue the definitive Certificates. Neither the
Depositor nor
the Trustee shall be liable for any delay in delivery of such
instructions and
may conclusively rely on, and shall be protected in relying on,
such
instructions.
(c) (i) REMIC I will be evidenced by (x) the REMIC I Regular
Interests
(designated below), which will be uncertificated and
non-transferable and are
hereby designated as the "regular interests" in REMIC I and have
the principal
balances and accrue interest at the Pass-Through Rates equal to
those set forth
in this Section 5.01(c)(i) and (y) the Class R-I Certificates,
which is hereby
designated as the single "residual interest" in REMIC I.
The REMIC I Regular Interests and the Class R-I Certificate will
have
the following designations, initial balances and pass-through
rates:
REMIC I Interest
Initial Balance
Pass-Through Rate Related Group
----------------
---------------
-------------------------------
1A
$
(1) Group 1
1B
$
(2) Group 1
2A
$
(1) Group 2
2B
$
(3) Group 2
3A
$
(1) Group 3
3B
$
(4) Group 3
4A
$
(1) Group 4
4B
$
(5) Group 4
ZZZ
$
(1) N/A
Class R-I
$
(2) Group 1
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(1) The weighted
average of the Net Rates of the Mortgage Loans, weighted on
the
basis of the respective Scheduled Principal Balance of each
such
Mortgage Loan as of the beginning of the Due Period immediately
preceding
the
related Distribution Date.
(2) The weighted
average of the Net Rates of the Group 1 Mortgage Loans,
weighted on the basis of the respective Scheduled Principal Balance
of each
such
Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date.
(3) The weighted
average of the Net Rates of the Group 2 Mortgage Loans,
weighted on the basis of the respective Scheduled Principal Balance
of each
such
Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date.
(4) The weighted
average of the Net Rates of the Gro
