MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
WELLS FARGO BANK, N.A.
Master Servicer and Trust Administrator
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2005
MASTR Asset Backed Securities Trust 2005-HE1
Mortgage Pass-Through Certificates
Series 2005-HE1
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENT
<S>
<C>
ARTICLE I
DEFINITIONS..................................................................................
SECTION 1.01.
Defined
Terms..........................................................................
SECTION 1.02.
Allocation of Certain Interest
Shortfalls..............................................
SECTION 1.03.
Rights of the NIMS
Insurer.............................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES..............................
SECTION 2.01.
Conveyance of the Mortgage
Loans.......................................................
SECTION 2.02.
Acceptance of REMIC I by
Trustee.......................................................
SECTION 2.03.
Repurchase or Substitution of Mortgage Loans by an Originator or
the Seller............
SECTION 2.04.
Reserved...............................................................................
SECTION 2.05.
Representations, Warranties and Covenants of the Master
Servicer.......................
SECTION 2.06.
Conveyance of REMIC Regular Interests and Acceptance of REMIC I,
REMIC II,
REMIC III and REMIC IV by the Trustee; Issuance of
Certificates........................
SECTION 2.07.
Issuance of Class R Certificates and Class R-X
Certificates............................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE
LOANS...........................................
SECTION 3.01.
Master Servicer to Act as Master
Servicer..............................................
SECTION 3.02.
[Reserved].............................................................................
SECTION 3.03.
Monitoring of
Servicers................................................................
SECTION 3.04.
Fidelity
Bond..........................................................................
SECTION 3.05.
Power to Act;
Procedures...............................................................
SECTION 3.06.
Due on Sale Clauses; Assumption
Agreements.............................................
SECTION 3.07.
Release of Mortgage
Files..............................................................
SECTION 3.08.
Documents, Records and Funds in Possession of Master Servicer to be
Held for
Trust
Administrator....................................................................
SECTION 3.09.
Standard Hazard Insurance and Flood Insurance
Policies.................................
SECTION 3.10.
Presentment of Claims and Collection of
Proceeds.......................................
SECTION 3.11.
[Reserved].............................................................................
SECTION 3.12.
Trust Administrator and the Custodian to Retain Possession of
Certain
Insurance Policies and
Documents.......................................................
SECTION 3.13.
Realization Upon Defaulted Mortgage
Loans..............................................
SECTION 3.14.
Compensation for the Master
Servicer...................................................
SECTION 3.15.
REO
Property...........................................................................
SECTION 3.16.
Annual Officer's Certificate as to
Compliance..........................................
SECTION 3.17.
Annual Independent Accountant's Servicing
Report.......................................
SECTION 3.18.
Obligations of the Master Servicer in Respect of Prepayment
Interest
Shortfalls.............................................................................
SECTION 3.19.
Custodial
Account......................................................................
SECTION 3.20.
Distribution
Account...................................................................
SECTION 3.21.
Permitted Withdrawals and Transfers from the Distribution
Account......................
SECTION 3.22.
[Reserved].............................................................................
SECTION 3.23.
[Reserved].............................................................................
SECTION 3.24.
Prohibited Activities With Respect to REO
Properties...................................
ARTICLE IV
PAYMENTS TO
CERTIFICATEHOLDERS...............................................................
SECTION 4.01.
Distributions..........................................................................
SECTION 4.02.
Statements to
Certificateholders.......................................................
SECTION 4.03.
Advances...............................................................................
SECTION 4.04.
Allocation of Realized
Losses..........................................................
SECTION 4.05.
Compliance with Withholding
Requirements...............................................
SECTION 4.06.
Exchange Commission; Additional
Information............................................
SECTION 4.07.
Net WAC Rate Carryover Reserve
Account.................................................
ARTICLE V
THE
CERTIFICATES.............................................................................
SECTION 5.01.
The
Certificates.......................................................................
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates..................................
SECTION 5.03.
Mutilated, Destroyed, Lost or Stolen
Certificates......................................
SECTION 5.04.
Persons Deemed
Owners..................................................................
SECTION 5.05.
Certain Available
Information..........................................................
ARTICLE VI
THE DEPOSITOR AND THE MASTER
SERVICER........................................................
SECTION 6.01.
Liability of the Depositor and the Master
Servicer.....................................
SECTION 6.02.
Merger or Consolidation of the Depositor or the Master
Servicer........................
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicer and
Others...............
SECTION 6.04.
Indemnification from the Master
Servicer...............................................
SECTION 6.05.
Limitation on Resignation of the Master Servicer; Assignment of
Master
Servicing..............................................................................
SECTION 6.06.
Successor Master
Servicer..............................................................
SECTION 6.07.
Rights of the Depositor in Respect of the Master
Servicer..............................
SECTION 6.08.
Duties of the Credit Risk
Manager......................................................
SECTION 6.09.
Limitation Upon Liability of the Credit Risk
Manager...................................
SECTION 6.10.
Removal of the Credit Risk
Manager.....................................................
ARTICLE VII
DEFAULT......................................................................................
SECTION 7.01.
Master Servicer Events of
Termination..................................................
SECTION 7.02.
Trustee to Act; Appointment of
Successor...............................................
SECTION 7.03.
Notification to
Certificateholders.....................................................
SECTION 7.04.
Waiver of Master Servicer Events of
Termination........................................
SECTION 7.05.
Survivability of Master Servicer
Liabilities...........................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE TRUST
ADMINISTRATOR...........................................
SECTION 8.01.
Duties of Trustee and Trust
Administrator..............................................
SECTION 8.02.
Certain Matters Affecting the Trustee and the Trust
Administrator......................
SECTION 8.03.
Neither Trustee nor Trust Administrator Liable for Certificates or
Mortgage
Loans..................................................................................
SECTION 8.04.
Trustee and Trust Administrator May Own
Certificates...................................
SECTION 8.05.
Trust Administrator's and Trustee's Fees and
Expenses..................................
SECTION 8.06.
Eligibility Requirements for Trustee and Trust
Administrator...........................
SECTION 8.07.
Resignation and Removal of the Trustee or Trust
Administrator..........................
SECTION 8.08.
Successor Trustee or Trust
Administrator...............................................
SECTION 8.09.
Merger or Consolidation of Trustee or Trust
Administrator..............................
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee..........................................
SECTION 8.11.
Appointment of Office or Agency; Appointment of
Custodian..............................
SECTION 8.12.
Representations and
Warranties.........................................................
ARTICLE IX
TERMINATION..................................................................................
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Mortgage
Loans.......................
SECTION 9.02.
Additional Termination
Requirements....................................................
ARTICLE X
REMIC
PROVISIONS.............................................................................
SECTION 10.01.
REMIC
Administration...................................................................
SECTION 10.02.
Prohibited Transactions and
Activities.................................................
SECTION 10.03.
Master Servicer and Trustee
Indemnification............................................
ARTICLE XI
MISCELLANEOUS
PROVISIONS.....................................................................
SECTION 11.01.
Amendment..............................................................................
SECTION 11.02.
Recordation of Agreement;
Counterparts.................................................
SECTION 11.03.
Limitation on Rights of
Certificateholders.............................................
SECTION 11.04.
Governing
Law..........................................................................
SECTION 11.05.
Notices................................................................................
SECTION 11.06.
Severability of
Provisions.............................................................
SECTION 11.07.
Notice to Rating Agencies and the NIMS
Insurer.........................................
SECTION 11.08.
Article and Section
References.........................................................
SECTION 11.09.
Grant of Security
Interest.............................................................
SECTION 11.10.
Duties of Trust Fund as Owner of Mortgage Loans under Servicing
Agreements.............
SECTION 11.11.
Third Party
Rights.....................................................................
</TABLE>
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<TABLE>
<CAPTION>
Exhibits
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<C>
Exhibit A-1 Form
of Class A-1 Certificate
Exhibit A-2 Form
of Class A-2 Certificate
Exhibit A-3 Form
of Class A-3 Certificate
Exhibit A-4 Form
of Class M-1 Certificate
Exhibit A-5 Form
of Class M-2 Certificate
Exhibit A-6 Form
of Class M-3 Certificate
Exhibit A-7 Form
of Class M-4 Certificate
Exhibit A-8 Form
of Class M-5 Certificate
Exhibit A-9 Form
of Class M-6 Certificate
Exhibit A-10 Form of
Class M-7 Certificate
Exhibit A-11 Form of
Class M-8 Certificate
Exhibit A-12 Form of
Class M-9 Certificate
Exhibit A-13 Form of
Class M-10 Certificate
Exhibit A-14 Form of
Class M-11 Certificate
Exhibit A-15 Form of
Class CE Certificate
Exhibit A-16 Form of
Class P Certificate
Exhibit A-17 Form of
Class R Certificate
Exhibit A-18 Form of
Class R-X Certificate
Exhibit B
Form of Servicer Assignment Agreements
Exhibit C-1 Form
of Trust Administrator's Initial Certification
Exhibit C-2 Form
of Trust Administrator's Final Certification
Exhibit C-3 Form
of Trust Administrator's Receipt of Mortgage Notes
Exhibit D-1 Form
of Mortgage Loan Purchase Agreement
Exhibit D-2 Form
of Originator Assignment Agreements
Exhibit E
Request for Release
Exhibit F-1 Form
of Transferor Representation Letter and Form of Transferee
Representation
Letter in Connection with Transfer of the Private Certificates
Pursuant to Rule 144A Under the
1933 Act
Exhibit F-2 Form
of Transfer Affidavit and Agreement and Form of Transferor
Affidavit in Connection with
Transfer of Residual Certificates
Exhibit G
Form of Certification with respect to ERISA and the Code
Exhibit H
Form of Report Pursuant to Section 4.06
Exhibit I
Form of Lost Note Affidavit
Exhibit J-1 Form
of Certification to Be Provided by the Master Servicer with Form
10-K
Exhibit J-2 Form
of Certification to Be Provided to the Master Servicer by the
Servicer
Exhibit K
Annual Statement of Compliance pursuant to Section 3.20
Exhibit L
Forms of Cap Contracts
Schedule 1
Mortgage Loan Schedule
Schedule 2
Prepayment Charge Schedule
</TABLE>
<PAGE>
This Pooling and Servicing Agreement, is dated and effective
as of April 1, 2005, among MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC. as
Depositor, WELLS FARGO BANK, N.A. as Master
Servicer and Trust Administrator and
U.S. BANK NATIONAL ASSOCIATION as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be
issued hereunder in multiple classes, which
in the aggregate will evidence the
entire beneficial ownership interest in
each REMIC (as defined herein) created
hereunder. The Trust Fund will consist of a
segregated pool of assets comprised
of the Mortgage Loans and certain other
related assets subject to this
Agreement.
REMIC I
-------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the
Mortgage Loans and certain other
related assets (other than the Net WAC Rate
Carryover Reserve Account and the
Cap Contracts) subject to this Agreement as
a REMIC for federal income tax
purposes, and such segregated pool of
assets will be designated as "REMIC I."
The Class R-I Interest will be the sole
class of "residual interests" in REMIC I
for purposes of the REMIC Provisions (as
defined herein). The following table
irrevocably sets forth the designation, the
REMIC I Remittance Rate, the initial
Uncertificated Balance and, for purposes of
satisfying Treasury regulation
section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each of the
REMIC I Regular Interests (as defined
herein). None of the REMIC I Regular
Interests will be certificated.
<TABLE>
<CAPTION>
REMIC I
INITIAL
LATEST POSSIBLE
DESIGNATION
REMITTANCE RATE
UNCERTIFICATED BALANCE
MATURITY DATE(1)
-----------
---------------
----------------------
----------------
<S>
<C>
<C>
<C>
I-LTAA
Variable(2)
$ 527,871,741.32
May 25, 2035
I-LTA1
Variable(2)
$
2,278,840.00
May 25, 2035
I-LTA2
Variable(2)
$
1,757,480.00
May 25, 2035
I-LTA3
Variable(2)
$
170,500.00
May 25, 2035
I-LTM1
Variable(2)
$ 161,590.00
May 25, 2035
I-LTM2
Variable(2)
$ 161,590.00
May 25, 2035
I-LTM3
Variable(2)
$
96,960.00
May 25, 2035
I-LTM4
Variable(2)
$
88,880.00
May 25, 2035
I-LTM5
Variable(2)
$
83,490.00
May 25, 2035
I-LTM6
Variable(2)
$
80,800.00
May 25, 2035
I-LTM7
Variable(2)
$
64,640.00
May 25, 2035
I-LTM8
Variable(2)
$
59,250.00
May 25, 2035
I-LTM9
Variable(2)
$
53,860.00
May 25, 2035
I-LTM10
Variable(2)
$
61,940.00
May 25, 2035
I-LTM11
Variable(2)
$
53,860.00
May 25, 2035
I-LTZZ
Variable(2)
$
5,440,312.68
May 25, 2035
I-LTP
Variable(2)
$
100.00
May 25, 2035
</TABLE>
----------------
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for
the
Mortgage
Loan with the latest maturity date has been designated as the
"latest
possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance
with the definition of "REMIC I Remittance Rate"
herein.
REMIC II
--------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the
REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such
segregated pool of assets will be
designated as "REMIC II." The Class R-II
Interest will evidence the sole class
of "residual interests" in REMIC II for
purposes of the REMIC Provisions under
federal income tax law. The following table
irrevocably sets forth the
designation, the Pass-Through Rate, the
initial aggregate Certificate Principal
Balance and, for purposes of satisfying
Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible
maturity date" for the indicated
Classes of Certificates.
<TABLE>
<CAPTION>
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL
LATEST POSSIBLE
DESIGNATION
PASS-THROUGH RATE
BALANCE
MATURITY DATE
-----------
-----------------
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-------------
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<C>
<C>
<C>
Class A-1
Variable(1)
$ 227,884,000
May 25, 2035
Class A-2
Variable(1)
$ 175,748,000
May 25, 2035
Class A-3
Variable(1)
$ 17,050,000
May 25, 2035
Class M-1
Variable(1)
$ 31,049,000
May 25, 2035
Class M-2
Variable(1)
$ 16,159,000
May 25, 2035
Class M-3
Variable(1)
$
9,696,000
May 25, 2035
Class M-4
Variable(1)
$
8,888,000
May 25, 2035
Class M-5
Variable(1)
$
8,349,000
May 25, 2035
Class M-6
Variable(1)
$
8,080,000
May 25, 2035
Class M-7
Variable(1)
$
6,464,000
May 25, 2035
Class M-8
Variable(1)
$
5,925,000
May 25, 2035
Class M-9
Variable(1)
$
5,386,000
May 25, 2035
Class M-10
Variable(1)
$
6,194,000
May
25, 2035
Class M-11
Variable(1)
$
5,386,000
May 25, 2035
Class CE
Interest
Variable(2)
$
5,386,634
May 25, 2035
Class P
Interest
N/A(3)
$
100
May 25, 2035
</TABLE>
---------------
(1) Calculated in accordance with the
definition of "Pass-Through Rate" herein.
(2) The Class CE Interest will accrue
interest at its variable Pass-Through Rate
on the Notional Amount of the Class CE
Interest outstanding from time to time
which shall equal the Uncertificated
Balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest
I-LTP). The Class CE Interest will not
accrue interest on its Uncertificated
Balance.
(3) The Class P Interest will not accrue
interest.
<PAGE>
REMIC III
---------
As provided herein, the Trustee shall make an election to
treat the segregated pool of assets
consisting of the Class CE Interest as a
REMIC for federal income tax purposes, and
such segregated pool of assets will
be designated as "REMIC III." The Class
R-III Interest represents the sole class
of "residual interests" in REMIC III for
purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class
designation, Pass-Through Rate and Original
Class Certificate Principal Balance
for the indicated Class of Certificates
that represents a "regular interest" in
REMIC III created hereunder:
<TABLE>
<CAPTION>
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL
LATEST POSSIBLE
CLASS
DESIGNATION
PASS-THROUGH RATE
BALANCE
MATURITY DATE(1)
-----------------
-----------------
-------
----------------
<S>
<C>
<C>
<C>
Class CE Certificates
Variable(2)
$ 5,375,895
May 25, 2035
</TABLE>
---------------
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution
Date immediately following the maturity date for the
Mortgage Loans
with the latest maturity date has been designated as the
"latest possible
maturity date" for the Class CE Certificates.
(2) The Class CE Certificates will
receive 100% of amounts received in respect
of the Class CE
Interest.
<PAGE>
REMIC IV
--------
As provided herein, the Trustee shall make an election to
treat the segregated pool of assets
consisting of the Class P Interest as a
REMIC for federal income tax purposes, and
such segregated pool of assets will
be designated as "REMIC IV." The Class R-IV
Interest represents the sole class
of "residual interests" in REMIC IV for
purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class
designation, Pass-Through Rate and Original
Class Certificate Principal Balance
for the indicated Class of Certificates
that represents a "regular interest" in
REMIC IV created hereunder:
<TABLE>
<CAPTION>
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL
LATEST POSSIBLE
CLASS
DESIGNATION
PASS-THROUGH RATE
BALANCE
MATURITY DATE(1)
-----------------
-----------------
-------
----------------
<S>
<C>
<C>
<C>
Class P Certificates
Variable(2)
$100.00
May 25, 2035
</TABLE>
---------------
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution
Date immediately following the maturity date for the
Mortgage Loans
with the latest maturity date has been designated as the
"latest possible
maturity date" for the Class P Certificates.
(2) The Class P Certificates will
receive 100% of amounts received in respect
of the Class P
Interest.
As of the Cut-off Date, the Mortgage Loans had an aggregate
Principal Balance equal to
$538,644,734.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the
Trust Administrator and the Trustee
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without
limitation, in the Preliminary Statement
hereto, the following words and
phrases, unless the context otherwise
requires, shall have the meanings
specified in this Article. Unless otherwise
specified, all calculations
described herein shall be made on the basis
of a 360-day year consisting of
twelve 30-day months.
"Accepted Master Servicing Practices": With respect to any
Mortgage Loan, as applicable, either (x)
those customary mortgage loan master
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 Master Servicer (except
in its capacity as successor to either
Servicer), or (y) as provided in Section
3.01 hereof, but in no event below the
standard set forth in clause (x).
"Accrual Period": With respect to the Class A Certificates and
the Mezzanine Certificates and each
Distribution Date, the period commencing on
the preceding Distribution Date (or in the
case of the first such Accrual
Period, commencing on the Closing Date) and
ending on the day preceding the
current Distribution Date. With respect to
any Distribution Date and the Class
CE Certificates, the one-month period
ending on the last day of the calendar
month immediately preceding the month in
which such Distribution Date occurs.
"Adjustable-Rate Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as
having a Mortgage Rate that is
subject to adjustment.
"Adjusted Net Maximum Mortgage Rate": With respect to any
Mortgage Loan (or the related REO
Property), as of any date of determination, a
per annum rate of interest equal to the
applicable Maximum Mortgage Rate for
such Mortgage Loan (or the Mortgage Rate in
the case of any Fixed-Rate Mortgage
Loan) as of the first day of the month
preceding the month in which the related
Distribution Date occurs minus the sum of
(i) the Administration Fee Rate, (ii)
the Servicing Fee Rate and (iii) the Credit
Risk Manager Fee Rate.
"Adjusted Net Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of
any date of determination, a per annum
rate of interest equal to the applicable
Mortgage Rate for such Mortgage Loan as
of the first day of the month preceding the
month in which the related
Distribution Date occurs minus the sum of
(i) the Administration Fee Rate, (ii)
the Servicing Fee Rate and (iii) the Credit
Risk Manager Fee Rate.
"Adjustment Date": With respect to each Adjustable-Rate
Mortgage Loan, the first day of the month
in which the Mortgage Rate of such
Mortgage Loan changes pursuant to the
related Mortgage Note. The first
Adjustment Date following the Cut-off Date
as to each Adjustable-Rate Mortgage
Loan is set forth in the Mortgage Loan
Schedule.
"Administration Fee": The amount payable to the Trust
Administrator on each Distribution Date
pursuant to Section 8.05 as compensation
for all services rendered by the Trust
Administrator in the execution of the
trust hereby created and in the exercise
and performance of any of the powers
and duties of the Trust Administrator
hereunder, which amount, with respect to
the Mortgage Loans and REO Properties and
for any calendar month, shall be equal
to one-twelfth of the Administration Fee
Rate (without regards to the words "per
annum" in the definition thereof)
multiplied by the Stated Principal Balance of
the Mortgage Loans as of the first day of
the related Due Period. The fees
payable to the Trustee for all services
rendered by it in the exercise and
performance of any of its respective powers
and duties hereunder will be paid by
the Trust Administrator on an annual basis
from its own funds in accordance with
a separate agreement between the Trust
Administrator and the Trustee.
"Administration Fee Rate": 0.024% per annum.
"Advance": With respect to any Distribution Date, as to any
Mortgage Loan or REO Property, any advance
made by either Servicer in respect of
Monthly Payments due during the related Due
Period pursuant to the related
Servicing Agreement or by the Master
Servicer (in its capacity as successor
Servicer) or any other successor Servicer
pursuant to Section 4.03.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or
under common control with such specified
Person. For the purposes of this
definition, "control" when used with respect to
any specified Person means the power to
direct the management and policies of
such Person, directly or indirectly,
whether through the ownership of voting
securities, by contract or otherwise, and
the terms "controlling" and
"controlled" have meanings correlative to
the foregoing.
"Aggregate Loss Severity Percentage": With respect to any
Distribution Date, the percentage
equivalent of a fraction, the numerator of
which is the aggregate amount of Realized
Losses incurred on any Mortgage Loans
from the Cut-off Date to the last day of
the preceding calendar month and the
denominator of which is the aggregate
Principal Balance of such Mortgage Loans
immediately prior to the liquidation of
such Mortgage Loans.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements
hereto.
"Allocated Realized Loss Amount": With respect to any
Distribution Date and any Class of
Mezzanine Certificates, the sum of (i) any
Realized Losses allocated to such Class of
Certificates on such Distribution
Date and (ii) the amount of any Allocated
Realized Loss Amount for such Class of
Certificates remaining unpaid from the
previous Distribution Date and reduced by
the amount of any Subsequent Recoveries
added to the Certificate Principal
Balance of such Class of Certificates.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form
(excepting therefrom, if applicable,
the mortgage recordation information which
has not been required pursuant to
Section 2.01 hereof or returned by the
applicable recorder's office), which is
sufficient under the laws of the
jurisdiction wherein the related Mortgaged
Property is located to reflect of record
the sale of the Mortgage, which
assignment, notice of transfer or
equivalent instrument may be in the form of
one or more blanket assignments covering
Mortgages secured by Mortgaged
Properties located in the same county, if
permitted by law.
"Available Funds": With respect to any Distribution Date, an
amount equal to the excess of (i) the sum
of (a) the aggregate of the related
Monthly Payments received on the Mortgage
Loans by the Servicers on or prior to
the related Determination Date, (b) Net
Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments, Subsequent
Recoveries, proceeds from
repurchases of and substitutions for such
Mortgage Loans and other unscheduled
recoveries of principal and interest in
respect of the Mortgage Loans received
by the Servicers during the related
Prepayment Period, (c) the aggregate of any
amounts received by the Servicers in
respect of a related REO Property withdrawn
from any REO Account and remitted to the
Master Servicer for such Distribution
Date, (d) the aggregate of any amounts on
deposit in the Distribution Account
representing Compensating Interest paid by
the Servicers or the Master Servicer
in respect of related Prepayment Interest
Shortfalls for such Distribution Date,
(e) the aggregate of any Advances made by
either Servicer for such Distribution
Date in respect of the related Mortgage
Loans and (f) the aggregate of any
related Advances made by the Master
Servicer (or other successor Servicer) in
respect of the Mortgage Loans for such
Distribution Date pursuant to Section
4.03 over (ii) the sum of (a) amounts
reimbursable or payable to the Servicers
pursuant to the related Servicing
Agreement, or to the Master Servicer pursuant
to Section 3.21, (b) Extraordinary Trust
Fund Expenses reimbursable to the
Trustee, the Servicers, the Master Servicer
or the Trust Administrator pursuant
to Section 3.21, (c) amounts in respect of
the items set forth in clauses (i)(a)
through (i)(e) above remitted by the
Servicers to the Master Servicer in error
or deposited in the Distribution Account in
respect of the items in clauses
(i)(a) through (i)(e) above in error, (d)
the amount of any Prepayment Charges
collected by the Servicers in connection
with the full or partial prepayment of
any of the related Mortgage Loans, (e) the
Administration Fee and any
indemnification amounts owed to the Trust
Administrator, the Trustee or the
Custodian payable from the Distribution
Account pursuant to Section 8.05, (f)
without duplication, any amounts in respect
of the items set forth in clauses
(i)(a) and (i)(b) permitted hereunder to be
retained by the Master Servicer or
to be withdrawn by the Master Servicer from
the Distribution Account pursuant to
Section 3.21, (e) Servicing Fees retained
by the Servicers pursuant to the
related Servicing Agreement, (f) the Credit
Risk Manager Fee. Notwithstanding
any of the foregoing, with respect to any
items that are part of the Available
Funds as defined above and that are
required to be remitted by the Servicers to
the Master Servicer, the Available Funds
shall not be deemed to include any
portion of such items that are not actually
remitted by the Servicers to the
Master Servicer.
"Balloon Mortgage Loan": A Mortgage Loan that provides for the
payment of the unamortized principal
balance of such Mortgage Loan in a single
payment at the maturity of such Mortgage
Loan that is substantially greater than
the preceding monthly payment.
"Balloon Payment": A payment of the unamortized principal
balance of a Mortgage Loan in a single
payment at the maturity of such Mortgage
Loan that is substantially greater than the
preceding Monthly Payment.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Book-Entry Certificate": The Class A Certificates and the
Mezzanine Certificates for so long as the
Certificates of such Class shall be
registered in the name of the Depository or
its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to
Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking or savings and loan
institutions in the State of
California, the State of New York, the
Commonwealth of Pennsylvania, or in the
cities in which the Corporate Trust Office
of the Trustee or the Corporate Trust
Office of the Trust Administrator is
located, are authorized or obligated by law
or executive order to be closed.
"Cap Contracts": The Class A Cap Contract and the Mezzanine
Cap Contract in the forms attached hereto
as Exhibit L.
"Certificate": Any one of the Mortgage Pass-Through
Certificates, Series 2005-HE1, Class A-1,
Class A-2, Class A-3, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8, Class
M-9, Class M-10, Class M-11, Class CE,
Class P, Class R and Class R-X, issued
under this Agreement.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any Distribution Date, a
fraction, expressed as a decimal
carried to at least six places, the
numerator of which is the aggregate
Certificate Principal Balance (or the
Notional Amount, in the case of the Class
CE Certificates) of such Class of
Certificates on such Distribution Date (after
giving effect to any distributions of
principal and allocations of Realized
Losses in reduction of the Certificate
Principal Balance (or the Notional
Amount, in the case of the Class CE
Certificates) of such Class of Certificates
to be made on such Distribution Date), and
the denominator of which is the
initial aggregate Certificate Principal
Balance (or the Notional Amount, in the
case of the Class CE Certificates) of such
Class of Certificates as of the
Closing Date.
"Certificate Margin": With respect to the Class A-1
Certificates and REMIC I Regular Interest
I-LTA1, 0.100% in the case of each
Distribution Date through and including the
Distribution Date on which the
aggregate Principal Balance of the Mortgage
Loans (and properties acquired in
respect thereof) remaining in the Trust
Fund is equal to or less than 10% of the
aggregate Cut-off Date Principal Balance of
the Mortgage Loans and 0.200% in the
case of each Distribution Date
thereafter.
With respect to the Class A-2 Certificates and REMIC I Regular
Interest I-LTA2, 0.200% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.400% in
the case of each Distribution Date
thereafter.
With respect to the Class A-3 Certificates and REMIC I Regular
Interest I-LTA3, 0.320% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.640% in
the case of each Distribution Date
thereafter.
With respect to the Class M-1 Certificates and REMIC I Regular
Interest I-LTM1, 0.430% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.645% in
the case of each Distribution Date
thereafter.
With respect to the Class M-2 Certificates and REMIC I Regular
Interest I-LTM2, 0.450% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.675% in
the case of each Distribution Date
thereafter.
With respect to the Class M-3 Certificates and REMIC I Regular
Interest I-LTM3, 0.480% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.720% in
the case of each Distribution Date
thereafter.
With respect to the Class M-4 Certificates and REMIC I Regular
Interest I-LTM4, 0.630% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.945% in
the case of each Distribution Date
thereafter.
With respect to the Class M-5 Certificates and REMIC I Regular
Interest I-LTM5, 0.650% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.975% in
the case of each Distribution Date
thereafter.
With respect to the Class M-6 Certificates and REMIC I Regular
Interest I-LTM6, 0.700% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 1.050% in
the case of each Distribution Date
thereafter.
With respect to the Class M-7 Certificates and REMIC I Regular
Interest I-LTM7, 1.250% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 1.875% in
the case of each Distribution Date
thereafter.
With respect to the Class M-8 Certificates and REMIC I Regular
Interest I-LTM8, 1.300% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 1.950% in
the case of each Distribution Date
thereafter.
With respect to the Class M-9 Certificates and REMIC I Regular
Interest I-LTM9, 1.750% in the case of each
Distribution Date through and
including the Distribution Date on which
the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in
respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 2.625% in
the case of each Distribution Date
thereafter.
With respect to the Class M-10 Certificates and REMIC I
Regular Interest I-LTM10, 3.500% in the
case of each Distribution Date through
and including the Distribution Date on
which the aggregate Principal Balance of
the Mortgage Loans (and properties acquired
in respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 5.250% in
the case of each Distribution Date
thereafter.
With respect to the Class M-11 Certificates and REMIC I
Regular Interest I-LTM11, 3.500% in the
case of each Distribution Date through
and including the Distribution Date on
which the aggregate Principal Balance of
the Mortgage Loans (and properties acquired
in respect thereof) remaining in the
Trust Fund is equal to or less than 10% of
the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 5.250% in
the case of each Distribution Date
thereafter.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the
Certificate Register, except that a
Disqualified Organization or a Non-United
States Person shall not be a Holder of
a Residual Certificate for any purposes
hereof and, solely for the purposes of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor or the Master
Servicer or any Affiliate thereof shall be
deemed not to be outstanding and the Voting
Rights to which it is entitled shall
not be taken into account in determining
whether the requisite percentage of
Voting Rights necessary to effect any such
consent has been obtained, except as
otherwise provided in Section 11.01. The
Trust Administrator and the Trustee and
the NIMS Insurer may conclusively rely upon
a certificate of the Depositor or
the Master Servicer in determining whether
a Certificate is held by an Affiliate
thereof. All references herein to "Holders"
or "Certificateholders" shall
reflect the rights of Certificate Owners as
they may indirectly exercise such
rights through the Depository and
participating members thereof, except as
otherwise specified herein; provided,
however, that the Trust Administrator, the
Trustee and the NIMS Insurer shall be
required to recognize as a "Holder" or
"Certificateholder" only the Person in
whose name a Certificate is registered in
the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of
such Certificate as reflected on the
books of the Depository or on the books of
a Depository Participant or on the
books of an indirect participating
brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to each Class A
Certificate, Mezzanine Certificate or Class
P Certificate as of any date of
determination, the Certificate Principal
Balance of such Certificate on the
Distribution Date immediately prior to such
date of determination plus any
Subsequent Recoveries added to the
Certificate Principal Balance of such
Certificate pursuant to Section 4.01, minus
all distributions allocable to
principal made thereon and Realized Losses
allocated thereto on such immediately
prior Distribution Date (or, in the case of
any date of determination up to and
including the first Distribution Date, the
initial Certificate Principal Balance
of such Certificate, as stated on the face
thereof). With respect to each Class
CE Certificate as of any date of
determination, an amount equal to the
Percentage Interest evidenced by such
Certificate times the excess, if any, of
(A) the then aggregate Uncertificated
Balances of the REMIC I Regular Interests
over (B) the then aggregate Certificate
Principal Balances of the Class A
Certificates, the Mezzanine Certificates
and the Class P Certificates then
outstanding.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation.
"Class A Cap Contract": The cap contract between the Trust
Administrator on behalf of the Trust and
the counterparty thereunder relating to
the Class A-3 Certificates.
"Class A Certificates": Any Class A-1 Certificate, Class A-2
Certificate or Class A-3 Certificate.
"Class A-1
Certificate": Any one of the Class A-1 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class A-2 Certificate": Any one of the Class A-2 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-2
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class A-3 Certificate": Any one of the Class A-3 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-3
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class CE Certificate": Any one of the Class CE Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-15
and evidencing a Regular Interest in
REMIC III for purposes of the REMIC
Provisions.
"Class CE Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the
Holders of the Class CE Certificates,
evidencing a Regular Interest in REMIC II
for purposes of the REMIC Provisions.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-4
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-1 Principal Distribution Amount": The excess of (x)
the sum of (i) the Certificate Principal
Balance of the Class A Certificates
(after taking into account the distribution
of the Senior Principal Distribution
Amount on such Distribution Date) and (ii)
the Certificate Principal Balance of
the Class M-1 Certificates immediately
prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 68.10%
and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (B)
the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of
the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) over
$2,693,224.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-5
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-2 Principal Distribution Amount": The excess of (x)
the sum of (i) the Certificate Principal
Balance of the Class A Certificates
(after taking into account the distribution
of the Senior Principal Distribution
Amount on such Distribution Date), (ii) the
Certificate Principal Balance of the
Class M-1 Certificates (after taking into
account the distribution of the Class
M-1 Principal Distribution Amount on such
Distribution Date) and (iii) the
Certificate Principal Balance of the Class
M-2 Certificates immediately prior to
such Distribution Date over (y) the lesser
of (A) the product of (i) 74.10% and
(ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last
day of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) over
$2,693,224.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-6
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-3 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date) and (iv) the
Certificate Principal Balance of the Class
M-3 Certificates immediately prior to
such Distribution Date over (y) the lesser
of (A) the product of (i) 77.70% and
(ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last
day of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) over
$2,693,224.
"Class M-4 Certificate": Any one of the Class M-4 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-7
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-4 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 81.00% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) over
$2,693,224.
"Class M-5 Certificate": Any one of the Class M-5 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-8
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-5 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date) and (vi) the Certificate
Principal Balance of the Class M-5
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 84.10% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) over
$2,693,224.
"Class M-6 Certificate": Any one of the Class M-6 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-9
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-6 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal
Balance of the Class M-6 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 87.10% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) over
$2,693,224.
"Class M-7 Certificate": Any one of the Class M-7 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-10
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-7 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date) and (viii) the Certificate
Principal Balance of the Class M-7
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 89.50% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) over
$2,693,224.
"Class M-8 Certificate": Any one of the Class M-8 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-11
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-8 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal
Balance of the Class M-8 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 91.70% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) over
$2,693,224.
"Class M-9 Certificate": Any one of the Class M-9 Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-12
and evidencing a Regular Interest in
REMIC II for purposes of the REMIC
Provisions.
"Class M-9 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the
sum of (i) the Certificate Principal
Balance of the Class A Certificates (after
taking into account the distribution
of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the
Certificate Principal Balance of the Class
M-1 Certificates (after taking into
account the distribution of the Class M-1
Principal Distribution Amount on such
Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2
Certificates (after taking into account the
distribution of the Class M-2
Principal Distribution Amount on such
Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3
Certificates (after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the distribution
of the Class M-8 Principal
Distribution Amount on such Distribution
Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates
immediately prior to such Distribution
Date over (y) the lesser of (A) the product
of (i) 93.70% and (ii) the aggregate
Stated Principal Balance of the Mortgage
Loans as of the last day of the related
Due Period (after giving effect to
scheduled payments of principal due during
the related Due Period, to the extent
received or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (B)
the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of
the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) over
$2,693,224.
"Class M-10 Certificate": Any one of the Class M-10
Certificates executed, authenticated and
delivered by the Trust Administrator,
substantially in the form annexed hereto as
Exhibit A-13 and evidencing a
Regular Interest in REMIC II for purposes
of the REMIC Provisions.
"Class M-10 Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x)
the sum of (i) the Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates
(after taking into account the distribution
of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the
distribution of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the distribution
of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the
distribution of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the distribution
of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the
distribution of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the distribution
of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the
distribution of the Class M-8 Principal
Distribution Amount on such Distribution
Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates
(after taking into account the distribution
of the Class M-9 Principal
Distribution Amount on such Distribution
Date) and (xi) the Certificate
Principal Balance of the Class M-10
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 96.00% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) over
$2,693,224.
"Class M-11 Certificate": Any one of the Class M-11
Certificates executed, authenticated and
delivered by the Trust Administrator,
substantially in the form annexed hereto as
Exhibit A-14 and evidencing a
Regular Interest in REMIC II for purposes
of the REMIC Provisions.
"Class M-11 Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x)
the sum of (i) the Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates
(after taking into account the distribution
of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the
distribution of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the distribution
of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the
distribution of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the distribution
of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the
distribution of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the distribution
of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the
distribution of the Class M-8 Principal
Distribution Amount on such Distribution
Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates
(after taking into account the distribution
of the Class M-9 Principal
Distribution Amount on such Distribution
Date, (xi) the Certificate Principal
Balance of the Class M-10 Certificates
(after taking into account the
distribution of the Class M-10 Principal
Distribution Amount on such
Distribution Date and (xii) the Certificate
Principal Balance of the Class M-11
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 98.00% and (ii) the
aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of
the related Due Period (after giving
effect to scheduled payments of principal
due during the related Due Period, to
the extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) and (B) the excess of the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of
the related Due Period (after giving effect
to scheduled payments of principal
due during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) over $2,693,224.
"Class P Certificate": Any one of the Class P Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-16
and evidencing a Regular Interest in
REMIC IV for purposes of the REMIC
Provisions.
"Class P Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the
Holders of the Class P Certificates,
evidencing a Regular Interest in REMIC II
for purposes of the REMIC Provisions.
"Class R Certificate": Any one of the Class R Certificates
executed, authenticated and delivered by
the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-17
and evidencing the ownership of the
Class R-I Interest and the Class R-II
Interest.
"Class R-X Certificate": The Class R-X Certificate executed,
authenticated and delivered by the Trust
Administrator, substantially in the
form annexed hereto as Exhibit A-18 and
evidencing the ownership of the Class
R-III Interest and the Class R-IV
Interest.
"Class R-I Interest": The uncertificated Residual Interest in
REMIC I.
"Class R-II Interest": The uncertificated Residual Interest in
REMIC II.
"Class R-III Interest": The uncertificated Residual Interest
in REMIC III.
"Class R-IV Interest": The uncertificated Residual Interest in
REMIC IV.
"Closing
Date": April 29,
2005.
"Code": The Internal Revenue Code of 1986, as amended.
"Commission": The
Securities and Exchange Commission.
"Compensating Interest": With respect to each Servicer, the
amount in respect of Prepayment Interest
Shortfalls required to be paid by the
related Servicer pursuant to its Servicing
Agreement from its own funds without
right of reimbursement. With respect to the
Master Servicer, the amount in
respect of Prepayment Interest Shortfalls
required to be paid by the Master
Servicer pursuant to Section 3.18 from its
own funds without right of
reimbursement except as provided in Section
3.18.
"Corporate Trust Office": The principal corporate trust office
of the Trustee or the Trust Administrator,
as the case may be, at which at any
particular time its corporate trust
business in connection with this Agreement
shall be administered, which office at the
date of the execution of this
instrument is located at (i) with respect
to the Trustee, U.S. Bank National
Association, 60 Livingston Avenue,
EP-MN-WS3D, St. Paul, Minnesota 55107,
Attention: Structured Finance/MASTR
2005-HE1, or at such other address as the
Trustee may designate from time to time by
notice to the Certificateholders, the
Depositor, the Servicers, the Master
Servicer, the Originators and the Trust
Administrator, or (ii) with respect to the
Trust Administrator, (A) for
Certificate transfer and surrender
purposes, Wells Fargo Bank, N.A., Sixth and
Marquette, Minneapolis, Minnesota 55479,
Attention: Corporate Trust
Services--MASTR 2005-HE1 and (B) for all
other purposes, Wells Fargo Bank, N.A.,
9062 Old Annapolis Road, Columbia, Maryland
21045, Attention: Corporate Trust
Services--MASTR 2005-HE1, or at such other
address as the Trust Administrator
may designate from time to time by notice
to the Certificateholders, the
Depositor, the Servicers, the Master
Servicer, the Originators and the Trustee.
"Corresponding Certificate": With respect to each REMIC I
Regular Interest set forth below, the
corresponding Regular Certificate set
forth in the table below:
REMIC I REGULAR INTEREST
REGULAR CERTIFICATE
------------------------
-------------------
I-LTA1
Class A-1
I-LTA2
Class A-2
I-LTA3
Class A-3
I-LTM1
Class M-1
I-LTM2
Class M-2
I-LTM3
Class M-3
I-LTM4
Class M-4
I-LTM5
Class M-5
I-LTM6
Class M-6
I-LTM7
Class M-7
I-LTM8
Class M-8
I-LTM9
Class M-9
I-LTM10
Class M-10
I-LTM11
Class M-11
I-LTP
Class P
"Credit Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction,
the numerator of which is the sum of
the aggregate Certificate Principal
Balances of the Mezzanine Certificates and
the Class CE Certificates, and the
denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans,
calculated prior to taking into account
distributions of principal on the Mortgage
Loans and distribution of the
Principal Distribution Amount to the
Certificates then entitled to distributions
of principal on such Distribution Date.
"Credit Risk Management Agreement": The respective agreements,
each between the Credit Risk Manager and a
Servicer or the Master Servicer,
regarding the loss mitigation and advisory
services to be provided by the Credit
Risk Manager.
"Credit Risk Manager": The Murrayhill Company, a Colorado
corporation, and its successors and
assigns.
"Credit Risk Manager Fee": The amount payable to the Credit
Risk Manager on each Distribution Date as
compensation for all services rendered
by it in the exercise and performance of
any of the powers and duties of the
Credit Risk Manager under the respective
Credit Risk Management Agreement and
any other agreement pursuant to which the
Credit Risk Manager is to perform any
duties with respect to the Mortgage Loans,
which amount shall equal one twelfth
of the product of (i) the Credit Risk
Manager Fee Rate (without regard to the
words "per annum") and (ii) the aggregate
Stated Principal Balance of the
Mortgage Loans and any related REO
Properties as of the first day of the related
Due Period.
"Credit Risk Manager Fee Rate": 0.015% per annum.
"Cumulative Loss Percentage": With respect to any Distribution
Date, the percentage equivalent of a
fraction, the numerator of which is the
aggregate amount of Realized Losses
incurred from the Cut-off Date to the last
day of the preceding calendar month and the
denominator of which is the sum of
the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off
Date.
"Custodial Account": The account or accounts established and
maintained for the benefit of the Trustee
by each Servicer with respect to the
related Mortgage Loans and REO Properties
pursuant to the related Servicing
Agreement.
"Custodial Agreement": The agreement dated as of the Closing
Date, between the Trustee and Deutsche Bank
National Trust Company providing for
the safekeeping of the Mortgage Files held
by Deutsche Bank National Trust
Company on behalf of the Trust in
accordance with this Agreement.
"Custodian": The entity acting as custodian of the Mortgage
Files on behalf of and for the benefit of
the Trustee, which as of the Closing
Date shall be Deutsche Bank National Trust
Company, with respect to the Mortgage
Files it holds on the Closing Date (the
"Deutsche Bank Files"). Wells Fargo
Bank, N.A. will act as a custodian with
respect to certain of the Mortgage Files
it holds on the Closing Date and U.S. Bank
National Association will act as
custodian with respect to certain of the
Mortgage Files it holds on the Closing
Date.
"Cut-off Date": With respect to each Original Mortgage Loan,
April 1, 2005. With respect to all
Qualified Substitute Mortgage Loans, their
respective dates of substitution.
References herein to the "Cut-off Date," when
used with respect to more than one Mortgage
Loan, shall be to the respective
Cut-off Dates for such Mortgage Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan, the unpaid principal balance thereof
as of the Cut-off Date of such
Mortgage Loan (or as of the applicable date
of substitution with respect to a
Qualified Substitute Mortgage Loan), after
giving effect to scheduled payments
due on or before the Cut-off Date, whether
or not received.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment
for such Mortgage Loan by a court of
competent jurisdiction in a proceeding
under the Bankruptcy Code, except such a
reduction resulting from a Deficient
Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property
by a court of competent jurisdiction
in an amount less than the then outstanding
principal balance of the Mortgage
Loan, which valuation results from a
proceeding initiated under the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage
Loan.
"Delinquency Percentage": As of the last day of the related
Due Period, the percentage equivalent of a
fraction, the numerator of which is
the aggregate Stated Principal Balance of
all Mortgage Loans that, as of the
last day of the previous calendar month,
are 60 or more days delinquent, are in
foreclosure, have been converted to REO
Properties or have been discharged by
reason of bankruptcy, and the denominator
of which is the aggregate Stated
Principal Balance of the Mortgage Loans and
REO Properties as of the last day of
the previous calendar month.
"Depositor": Mortgage
Asset Securitization Transactions, Inc.,
a Delaware corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of
the initial Depository, for purposes
of registering those Certificates that are
to be Book-Entry Certificates, is
CEDE & Co. The Depository shall at all
times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New
York and a "clearing agency" registered
pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934,
as amended.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for
whom from time to time a Depository
effects book-entry transfers and pledges of
securities deposited with the
Depository.
"Determination Date": With respect to any Distribution Date,
the 15th day of the calendar month in which
such Distribution Date occurs or, if
such 15th day is not a Business Day, the
Business Day immediately preceding such
15th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the
tenants thereof, the management or
operation of such REO Property, the holding
of such REO Property primarily for
sale to customers, the performance of any
construction work thereon or any use
of such REO Property in a trade or business
conducted by REMIC I other than
through an Independent Contractor;
provided, however, that the Trustee (or the
related Servicer or the Master Servicer on
behalf of the Trustee) shall not be
considered to Directly Operate an REO
Property solely because the Trustee (or
the related Servicer or the Master Servicer
on behalf of the Trustee)
establishes rental terms, chooses tenants,
enters into or renews leases, deals
with taxes and insurance, or makes
decisions as to repairs or capital
expenditures with respect to such REO
Property.
"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 Freddie Mac,
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, (v) an "electing
large partnership" and (vi) any other
Person so designated by the Trustee or the
Trust Administrator based upon an Opinion
of Counsel that the holding of an
Ownership Interest in a Residual
Certificate by such Person may cause any REMIC
or any Person having an Ownership Interest
in any Class of Certificates (other
than such Person) to incur a liability for
any federal tax imposed under the
Code that would not otherwise be imposed
but for the Transfer of an Ownership
Interest in a 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 by the Trust Administrator
pursuant to Section 3.20 which shall
be entitled "Wells Fargo Bank, N.A. as
Trust Administrator, in trust for the
registered holders of MASTR Asset Backed
Securities Trust 2005-HE1, Mortgage
Pass-Through Certificates, Series
2005-HE1--Distribution Account," and which
shall be an Eligible Account.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the
Business Day immediately following such 25th
day, commencing in May 2005.
"Due Date": With respect to each Distribution Date, the first
day of the calendar month in which such
Distribution Date occurs, which is
generally the day of the month on which the
Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the
month immediately preceding the month
in which such Distribution Date occurs and
ending on the related Due Date.
"Eligible Account": Any of (i) an account or accounts
maintained with a federal or state
chartered depository institution or trust
company the short-term unsecured debt
obligations of which (or, in the case of a
depository institution or trust company
that is the principal subsidiary of a
holding company, the short-term unsecured
debt obligations of such holding
company) are rated P-1 by Moody's, F-1 by
Fitch or A-1+ by S&P (or comparable
ratings if Moody's, Fitch and S&P are
not the Rating Agencies) at the time any
amounts are held on deposit therein, (ii)
with respect to any Escrow Account, an
account or accounts the deposits in which
are fully 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 delivered
to the NIMS Insurer, the Trust
Administrator, the Trustee and to each Rating
Agency, the Certificateholders will have a
claim with respect to the funds in
such account or a perfected first priority
security interest against such
collateral (which shall be limited to
Permitted Investments) securing such funds
that is superior to claims of any other
depositors or creditors of the
depository institution with which such
account is maintained, (iii) a trust
account or accounts maintained with the
trust department of a federal or state
chartered depository institution, national
banking association or trust company
acting in its fiduciary capacity or (iv) an
account otherwise acceptable to the
NIMS Insurer and to each Rating Agency
without reduction or withdrawal of their
then current ratings of the Certificates as
evidenced by a letter from each
Rating Agency to the Trust Administrator,
the Trustee and the NIMS Insurer.
Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Estate in Real Property": A fee simple estate in a parcel of
land.
"Excess Overcollateralized Amount": With respect to the Class
A Certificates and the Mezzanine
Certificates and any Distribution Date, the
excess, if any, of (i) the
Overcollateralized Amount for such Distribution Date,
assuming that 100% of the Principal
Remittance Amount is applied as a principal
payment on such Distribution Date over (ii)
the Overcollateralization Target
Amount for such Distribution Date.
"Extra Principal Distribution Amount": With respect to any
Distribution Date, the lesser of (x) the
Net Monthly Excess Cashflow for such
Distribution Date and (y) the
Overcollateralization Deficiency Amount for such
Distribution Date.
"Extraordinary Trust Fund Expense": Any amounts reimbursable
to the Master Servicer pursuant to Section
3.03 or Section 6.03, to the
Servicers, the Trustee or the Trust
Administrator, or any director, officer,
employee or agent of the Trustee or the
Trust Administrator from the Trust Fund
pursuant to Section 6.03, Section 8.05 or
Section 10.01(c) and any amounts
payable from the Distribution Account in
respect of taxes pursuant to Section
10.01(g)(iii).
"Fannie Mae": Fannie Mae, formally known as the Federal
National Mortgage Association, or any
successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property
purchased or repurchased by the
Originators, the Seller or the Depositor
pursuant to or as contemplated by Section
2.03 or Section 9.01), a determination
made by the related Servicer that all
Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which the
related Servicer, in its reasonable
good faith judgment, expects to be finally
recoverable in respect thereof have
been so recovered. Based on information
provided to it by the Servicers, the
Master Servicer shall maintain records of
each Final Recovery Determination
made.
"Fitch": Fitch Ratings, or its successor in interest.
"Fixed-Rate Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as
having a Mortgage Rate that is
fixed.
"Formula Rate": For any Distribution Date and the Class A
Certificates and the Mezzanine
Certificates, the lesser of (i) One-Month LIBOR
plus the related Certificate Margin and
(ii) the Maximum Cap Rate.
"Freddie Mac": Freddie Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor
thereto.
"Gross Margin": With respect to each Adjustable-Rate Mortgage
Loan, the fixed percentage set forth in the
related Mortgage Note that is added
to the Index on each Adjustment Date in
accordance with the terms of the related
Mortgage Note used to determine the
Mortgage Rate for such Adjustable-Rate
Mortgage Loan.
"Highest Priority": As of any date of determination, the Class
of Mezzanine Certificates then outstanding
with a Certificate Principal Balance
greater than zero, with the highest
priority for payments pursuant to Section
4.01, in the following order: Class M-1,
Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class
M-9, Class M-10 and Class M-11
Certificates.
"Indenture": An indenture relating to the issuance of notes
secured by the Class CE Certificates, the
Class P Certificates and/or the Class
R Certificates (or any portion thereof)
which may or may not be guaranteed by
the NIMS Insurer.
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact
independent of the Servicers, the Depositor,
the Master Servicer, the Trustee, the Trust
Administrator and their respective
Affiliates, (b) does not have any direct
financial interest in or any material
indirect financial interest in the
Servicers, the Depositor, the Master
Servicer, the Trustee, the Trust
Administrator or any Affiliate thereof, and (c)
is not connected with the Servicers, the
Depositor, the Master Servicer, the
Trustee, the Trust Administrator or any
Affiliate thereof as an officer,
employee, promoter, underwriter, trustee,
partner, director or Person performing
similar functions; provided, however, that
a Person shall not fail to be
Independent of the Servicers, the
Depositor, the Master Servicer, the Trustee,
the Trust Administrator or any Affiliate
thereof merely because such Person is
the beneficial owner of 1% or less of any
class of securities issued by the
Servicers, the Depositor or the Master
Servicer, the Trustee, the Trust
Administrator or any Affiliate thereof, as
the case may be.
"Independent Contractor": Either (i) any Person (other than
the Servicers or the Master Servicer) that
would be an "independent contractor"
with respect to REMIC I within the meaning
of Section 856(d)(3) of the Code if
REMIC I were a real estate investment trust
(except that the ownership tests set
forth in that section shall be considered
to be met by any Person that owns,
directly or indirectly, 35% or more of any
Class of Certificates), so long as
REMIC I does not receive or derive any
income from such Person and provided that
the relationship between such Person and
REMIC I is at arm's length, all within
the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other
Person (including the Servicers and the
Master Servicer) if the Trust
Administrator has received an Opinion of
Counsel for the benefit of the Trustee
and the Trust Administrator to the effect
that the taking of any action in
respect of any REO Property by such Person,
subject to any conditions therein
specified, that is otherwise herein
contemplated to be taken by an Independent
Contractor will not cause such REO Property
to cease to qualify as "foreclosure
property" within the meaning of Section
860G(a)(8) of the Code (determined
without regard to the exception applicable
for purposes of Section 860D(a) of
the Code), or cause any income realized in
respect of such REO Property to fail
to qualify as Rents from Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan
and with respect to each related Adjustment
Date, the index as specified in the
related Mortgage Note.
"Insurance Proceeds": Proceeds of any title policy, hazard
policy or other insurance policy, covering
a Mortgage Loan to the extent such
proceeds are not to be applied to the
restoration of the related Mortgaged
Property or released to the Mortgagor in
accordance with the procedures followed
by the related Servicer under the related
Servicing Agreement, subject to the
terms and conditions of the related
Mortgage Note and Mortgage.
"Interest Determination Date": With respect to the Class A
Certificates, the Mezzanine Certificates,
REMIC I Regular Interest I-LTA1, REMIC
I Regular Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4,
REMIC I Regular Interest I-LTM5, REMIC
I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular
Interest I-LTM8, REMIC I Regular Interest
I-LTM9, REMIC I Regular Interest
I-LTM10 and REMIC I Regular Interest
I-LTM11 and any Accrual Period therefor,
the second London Business Day preceding
the commencement of such Accrual
Period.
"Interest Remittance Amount": With respect to any Distribution
Date, that portion of the Available Funds
for such Distribution Date
attributable to interest received or
advanced with respect to the Mortgage
Loans.
"Late Collections": With respect to any Mortgage Loan and any
Due Period, all amounts received by the
Servicers subsequent to the
Determination Date immediately following
such Due Period, whether as late
payments of Monthly Payments or as
Insurance Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or
collections of principal and/or
interest due (without regard to any
acceleration of payments under the related
Mortgage and Mortgage Note) but delinquent
for such Due Period and not
previously recovered.
"Last Scheduled Distribution Date": The Distribution Date in
May 2035, which is the Distribution Date
immediately following the maturity date
for the Mortgage Loan with the latest
maturity date.
"Liquidated Mortgage Loan": As to any Distribution Date, any
Mortgage Loan in respect of which the
related Servicer has determined, in its
reasonable judgment, as of the end of the
related Prepayment Period, that all
Liquidation Proceeds which it expects to
recover with respect to the liquidation
of the Mortgage Loan or disposition of the
related REO Property have been
recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final
Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage
Loan is removed from REMIC I by reason of
its being purchased, repurchased or
replaced pursuant to or as contemplated by
Section 2.03 or Section 9.01. With
respect to any REO Property, either of the
following events: (i) a Final
Recovery Determination is made as to such
REO Property; or (ii) such REO
Property is removed from REMIC I by reason
of its being purchased pursuant to
Section 9.01.
"Liquidation Proceeds": The amount (other than amounts
received in respect of the rental of any
REO Property prior to REO Disposition)
received by the related Servicer in
connection with (i) the taking of all or a
part of a Mortgaged Property by exercise of
the power of eminent domain or
condemnation, (ii) the liquidation of a
defaulted Mortgage Loan through a
trustee's sale, foreclosure sale or
otherwise, or (iii) the purchase, repurchase
or substitution of a Mortgage Loan or an
REO Property pursuant to the related
Servicing Agreement or pursuant to or as
contemplated by Section 2.03 or Section
9.01.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the
numerator of which is the principal
balance of the related Mortgage Loan at
such date and the denominator of which
is the Value of the related Mortgaged
Property.
"London Business Day": Any day on which banks in the City of
London and New York are open and conducting
transactions in United States
dollars.
"Loss Severity Percentage": With respect to any Distribution
Date, the percentage equivalent of a
fraction, the numerator of which is the
amount of Realized Losses incurred on a
Mortgage Loan and the denominator of
which is the principal balance of such
Mortgage Loan immediately prior to the
liquidation of such Mortgage Loan.
"Marker Rate": With respect to the Class CE Interest and any
Distribution Date, a per annum rate equal
to two (2) times the weighted average
of the REMIC I Remittance Rate for each of
REMIC I Regular Interests I-LTA1,
I-LTA2, I-LTA3, I-LTM1, I-LTM2, I-LTM3,
I-LTM4, I-LTM5, I-LTM6, I-LTM7, I-LTM8,
I-LTM9, I-LTM10, I-LTM11 and I-LTZZ, with
the rate on each such REMIC I Regular
Interest (other than REMIC I Regular
Interest I-LTZZ) subject to a cap equal to
the lesser of (a) One-Month LIBOR plus the
related margin and (b) the Net WAC
Rate for the purpose of this calculation
and with the rate on REMIC I Regular
Interest I-LTZZ subject to a cap of zero
for the purpose of this calculation;
provided, however, that solely for this
purpose, calculations of the REMIC I
Remittance Rate and the related caps with
respect to such REMIC I Regular
Interests (other than REMIC I Regular
Interest I-LTZZ) shall be multiplied by a
fraction, the numerator of which is 30 and
the denominator of which is the
actual number of days elapsed in the
related Accrual Period.
"Master Agreements": The Master Mortgage Loan Purchase and
Interim Servicing Agreement, between the
related Originator and the Seller.
"Master Servicer": As of the Closing Date, Wells Fargo Bank,
N.A. and thereafter, its respective
successors in interest who meet the
qualifications of the Master Servicer under
this Agreement. The Master Servicer
and the Trust Administrator shall at all
times be the same Person.
"Master Servicer Certification": A written certification,
substantially in the form attached hereto
as Exhibit J, covering servicing of
the Mortgage Loans by the Servicers and
signed by an officer of the Master
Servicer that complies with (i) the
Sarbanes-Oxley Act of 2002, as amended from
time to time, and (ii) the February 21,
2003 Statement by the Staff of the
Division of Corporation Finance of the
Securities and Exchange Commission
Regarding Compliance by Asset-Backed
Issuers with Exchange Act Rules 13a-14 and
15d-14, as in effect from time to time;
provided that if, after the Closing Date
(a) the Sarbanes-Oxley Act of 2002 is
amended, (b) the Statement referred to in
clause (ii) is modified or superceded by
any subsequent statement, rule or
regulation of the Securities and Exchange
Commission or any statement of a
division thereof, or (c) any future
releases, rules and regulations are
published by the Securities and Exchange
Commission from time to time pursuant
to the Sarbanes-Oxley Act of 2002, which in
any such case affects the form or
substance of the required certification and
results in the required
certification being, in the reasonable
judgment of the Master Servicer,
materially more onerous than the form of
the required certification as of the
Closing Date, the Master Servicer
Certification shall be as agreed to by the
Master Servicer and the Depositor following
a negotiation in good faith to
determine how to comply with any such new
requirements.
"Master Servicer Event of Termination": One or more of the
events described in Section 7.01.
"Master Servicing Compensation": The meaning specified in
Section 3.14.
"Maximum Cap Rate": For any Distribution Date with respect to
the Class A Certificates and the Mezzanine
Certificates, a per annum rate equal
to the weighted average of the Adjusted Net
Maximum Mortgage Rates of the
Mortgage Loans multiplied by a fraction,
the numerator of which is 30 and the
denominator of which is the actual number
of days elapsed in the related Accrual
Period.
"Maximum I-LTZZ Uncertificated Interest Deferral Amount": With
respect to any Distribution Date, the
excess of (i) accrued interest at the
REMIC I Remittance Rate applicable to REMIC
I Regular Interest I-LTZZ for such
Distribution Date on a balance equal to the
Uncertificated Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I
Overcollateralization Amount, in each
case for such Distribution Date, over (ii)
Uncertificated Interest on REMIC I
Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3,
REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest
I-LTM8, REMIC I Regular Interest
I-LTM9, REMIC I Regular Interest I-LTM10
and REMIC I Regular Interest I-LTM11
for such Distribution Date, with the rate
on each such REMIC I Regular Interest
subject to a cap equal to the lesser of (a)
One-Month LIBOR plus the related
Certificate Margin and (b) the Net WAC
Rate; provided, however, each cap shall
be multiplied by a fraction, the numerator
of which is 30 and the denominator of
which is the actual number of days elapsed
in the related Accrual Period.
"Maximum Mortgage Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in
the related Mortgage Note as the
maximum Mortgage Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under
the laws of the State of Delaware, or
any successor thereto.
"MERS(R) System": The system of recording transfers of
Mortgages electronically maintained by
MERS.
"MIN": The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R)
System.
"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.
"Mezzanine Cap Contract": The cap contract between the Trust
Administrator and the counterparty
thereunder relating to the Mezzanine
Certificates.
"Mezzanine
Certificate": Any Class M-1 Certificate, Class M-2
Certificate, Class M-3 Certificate, Class
M-4 Certificates, Class M-5
Certificates, Class M-6 Certificate, Class
M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates, Class
M-10 Certificates or Class M-11
Certificates.
"Minimum Mortgage Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in
the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"Monthly Interest Distributable Amount": With respect to the
Class A Certificates, the Mezzanine
Certificates and the Class CE Certificates
and any Distribution Date, the amount of
interest accrued during the related
Accrual Period at the related Pass-Through
Rate on the Certificate Principal
Balance (or Notional Amount in the case of
the Class CE Certificates) of such
Class immediately prior to such
Distribution Date, reduced (to not less than
zero) by any Prepayment Interest Shortfalls
(to the extent not covered by
payments made by the Servicers or the
Master Servicer) and Relief Act Interest
Shortfalls (allocated to such Certificate
based on its respective entitlements
to interest irrespective of any Prepayment
Interest Shortfalls and Relief Act
Interest Shortfalls for such Distribution
Date).
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and
interest on such Mortgage Loan which
is payable by the related Mortgagor from
time to time under the related Mortgage
Note, determined: (a) after giving effect
to (i) any Deficient Valuation and/or
Debt Service Reduction with respect to such
Mortgage Loan and (ii) any reduction
in the amount of interest collectible from
the related Mortgagor pursuant to the
Relief Act; (b) except as provided in the
related Servicing Agreement, without
giving effect to any extension granted or
agreed to by the related Servicer
pursuant to the related Servicing Agreement
and (c) except as provided in the
related Servicing Agreement, on the
assumption that all other amounts, if any,
due under such Mortgage Loan are paid when
due.
"Monthly Statement": The statement prepared by the Trust
Administrator pursuant to Section 4.02.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first or second lien on, or
first or second priority security
interest in, a Mortgaged Property securing
a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement. Mortgage File shall
include the Deutsche Bank Files.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee and delivered to the Trustee
pursuant to Section 2.01 or Section
2.03(b) of this Agreement, as held from
time to time as a part of the Trust, the
Mortgage Loans so held being identified in
the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement between the
Seller and the Depositor, regarding the
sale of the Mortgage Loans by the Seller
to the Depositor, substantially in the form
of Exhibit D-1 annexed hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in REMIC I on such date,
attached hereto as Schedule 1. The
Mortgage Loan Schedule shall set forth the
following information with respect to
each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) [reserved];
(iii) the state and zip code of the Mortgaged Property;
(iv)
a code indicating whether the Mortgaged Property was
represented by the borrower, at the time of origination, as
being
owner-occupied;
(v) the type of Residential Dwelling constituting the
Mortgaged Property;
(vi) the original months to maturity;
(vii) the stated remaining months to maturity from the Cut-off
Date based on the original amortization schedule;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate in effect immediately following the
Cut-off Date;
(x) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment at origination;
(xiii) the amount of the Monthly Payment due on the first Due
Date after the Cut-off Date;
(xiv) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xv) the original principal amount of the Mortgage Loan;
(xvi) the Stated Principal Balance of the Mortgage Loan as of
the close of business on the Cut-off Date;
(xvii) a code indicating the purpose of the Mortgage Loan
(I.E., purchase financing, rate/term refinancing, cash-out
refinancing);
(xviii) the Mortgage Rate at origination;
(xix) a code indicating the documentation program (I.E., full
documentation, limited documentation, stated income
documentation);
(xx) the risk grade;
(xxi) the Value of the Mortgaged Property;
(xxii) the sale price of the Mortgaged Property, if
applicable;
(xxiii) the actual unpaid principal balance of the Mortgage
Loan as of the Cut-off Date;
(xxiv) the type and term of the related Prepayment Charge;
(xxv) the rounding code;
(xxvi) the program code;
(xxvii) a code indicating the lien priority for Mortgage
Loans;
(xxviii) with respect
to each Adjustable Rate Mortgage Loan,
the Minimum Mortgage Rate, the Maximum Mortgage Rate, the Gross
Margin,
the next Adjustment Date and the Periodic Rate Cap;
(xxix) the credit score ("FICO") of such Mortgage Loan;
(xxx) the total amount of points and fees charged such
Mortgage Loan; and
(xxxi) the name of the related Servicer.
The Mortgage Loan Schedule shall set forth the following
information with respect to the Mortgage
Loans in the aggregate as of the
Cut-off Date: (1) the number of Mortgage
Loans (separately identifying the
number of Fixed-Rate Mortgage Loans and the
number of Adjustable-Rate Mortgage
Loans); (2) the current Principal Balance
of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the
Mortgage Loans and (4) the weighted
average maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall be
amended from time to time by the Depositor
in accordance with the provisions of
this Agreement. With respect to any
Qualified Substitute Mortgage Loan, the
Cut-off Date shall refer to the related
Cut-off Date for such Mortgage Loan,
determined in accordance with the
definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence
of the indebtedness of a Mortgagor under a
Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Schedule 1 and existing from time to time
thereafter, and any REO Properties
acquired in respect thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on
such Mortgage Loan from time to time in
accordance with the provisions of the
related Mortgage Note, which rate with
respect to the Adjustable-Rate Mortgage
Loans, (A) as of any date of
determination until the first Adjustment
Date following the Cut-off Date shall
be the rate set forth in the Mortgage Loan
Schedule as the Mortgage Rate in
effect immediately following the Cut-off
Date and (B) as of any date of
determination thereafter shall be the rate
as adjusted on the most recent
Adjustment Date equal to the sum, rounded
to the nearest or next highest 0.125%
as provided in the Mortgage Note, of the
Index, as most recently available as of
a date prior to the Adjustment Date as set
forth in the related Mortgage Note,
plus the related Gross Margin; provided
that the Mortgage Rate on such
Adjustable-Rate Mortgage Loan on any
Adjustment Date shall never be more than
the lesser of (i) the sum of the Mortgage
Rate in effect immediately prior to
the Adjustment Date plus the related
Periodic Rate Cap, if any, and (ii) the
related Maximum Mortgage Rate, and shall
never be less than the greater of (i)
the Mortgage Rate in effect immediately
prior to the Adjustment Date less the
Periodic Rate Cap, if any, and (ii) the
related Minimum Mortgage Rate. With
respect to each Mortgage Loan that becomes
an REO Property, as of any date of
determination, the annual rate determined
in accordance with the immediately
preceding sentence as of the date such
Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property,
consisting of an Estate in Real
Property improved by a Residential
Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated
Mortgage Loan or any other disposition of
related Mortgaged Property (including
REO Property) the related Liquidation
Proceeds and Insurance Proceeds net of
Advances, Servicing Advances, Servicing
Fees and any other accrued and unpaid
servicing fees received and retained in
connection with the liquidation of such
Mortgage Loan or Mortgaged Property.
"Net Monthly Excess Cashflow": With respect to each
Distribution Date, the sum of (a) any
Overcollateralization Release Amount for
such Distribution Date and (b) the excess
of (x) Available Funds for such
Distribution Date over (y) the sum for such
Distribution Date of (A) the Monthly
Interest Distributable Amounts for the
Class A Certificates and the Mezzanine
Certificates, (B) the Unpaid Interest
Shortfall Amounts for the Class A
Certificates and (C) the Principal
Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property) as of any date of
determination, a per annum rate of
interest equal to the then applicable
Mortgage Rate for such Mortgage Loan minus
the Servicing Fee Rate.
"Net WAC Rate": For any Distribution Date with respect to the
Class A and Mezzanine Certificates, a per
annum rate equal to the product of (x)
the weighted average of the Adjusted Net
Mortgage Rates of the Mortgage Loans,
weighted based on their outstanding Stated
Principal Balances as of the first
day of the calendar month preceding the
month in which the Distribution Date
occurs and (y) a fraction, the numerator of
which is 30 and the denominator of
which is the actual number of days elapsed
in the related Accrual Period. For
federal income tax purposes, the equivalent
of the foregoing shall be expressed
as the weighted average of the REMIC I
Remittance Rate on the REMIC I Regular
Interests, weighted on the basis of the
Uncertificated Balance of each such
REMIC I Regular Interest.
"Net WAC Rate Carryover Amount": With respect to the Class A
Certificates and the Mezzanine Certificates
and any Distribution Date, the sum
of (A) the excess of (i) the amount of
interest accrued on such Class of
Certificates on such Distribution Date
calculated at the related Formula Rate,
over (ii) the amount of interest accrued on
such Class of Certificates at the
Net WAC Rate for such Distribution Date and
(B) the Net WAC Rate Carryover
Amount for the previous Distribution Date
not previously paid, together with
interest thereon at a rate equal to the
Formula Rate for such Class of
Certificates for such Distribution Date and
for such Accrual Period.
"Net WAC Rate Carryover Reserve Account": The account
established and maintained pursuant to
Section 4.07.
"New Lease": Any lease of REO Property entered into on behalf
of REMIC I, including any lease renewed or
extended on behalf of REMIC I, if
REMIC I has the right to renegotiate the
terms of such lease.
"NIMS Insurer": Any insurer that is guaranteeing certain
payments under notes secured by collateral
which includes all or a portion of
the Class CE Certificates, the Class P
Certificates and/or the Class R
Certificates.
"Nonrecoverable Advance": Any Advance previously made or
proposed to be made in respect of a
Mortgage Loan or REO Property that, in the
good faith business judgment of the related
Servicer or the Master Servicer, as
applicable, will not or, in the case of a
proposed Advance, would not be
ultimately recoverable from related Late
Collections, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan
or REO Property as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in
respect of a Mortgage Loan or REO
Property that, in the good faith business
judgment of the related Servicer, will
not or, in the case of a proposed Servicing
Advance, would not be ultimately
recoverable from related Late Collections,
Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO
Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": With respect to the Class CE Interest and
any Distribution Date, the Uncertificated
Balance of the REMIC I Regular
Interests (other than REMIC I Regular
Interest I-LTP) for such Distribution
Date.
"Officer's Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the
Board, the President or a vice president
(however denominated), and by the
Treasurer, the Secretary, or one of the
assistant treasurers or assistant
secretaries of the Master Servicer, the
Originators, the Seller or the Depositor,
as applicable.
"One-Month LIBOR": With respect to the Class A Certificates,
the Mezzanine Certificates, REMIC I Regular
Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2,
REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest
I-LTM8, REMIC I Regular Interest I-LTM9,
REMIC I Regular Interest I-LTM10 and
REMIC I Regular Interest I-LTM11 and any
Accrual Period therefor, the rate
determined by the Trust Administrator on
the related Interest Determination Date
on the basis of the offered rate for
one-month U.S. dollar deposits, as such
rate appears on Telerate Page 3750 as of
11:00 a.m. (London time) on such
Interest Determination Date; provided that
if such rate does not appear on
Telerate Page 3750, the rate for such date
will be determined on the basis of
the offered rates of the Reference Banks
for one-month U.S. dollar deposits, as
of 11:00 a.m. (London time) on such
Interest Determination Date. In such event,
the Trust Administrator will request the
principal London office of each of the
Reference Banks to provide a quotation of
its rate. If on such Interest
Determination Date, two or more Reference
Banks provide such offered quotations,
One-Month LIBOR for the related Accrual
Period shall be the arithmetic mean of
such offered quotations (rounded upwards if
necessary to the nearest whole
multiple of 1/16%). If on such Interest
Determination Date, fewer than two
Reference Banks provide such offered
quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i)
LIBOR as determined on the previous
Interest Determination Date and (ii) the
Reserve Interest Rate. Notwithstanding
the foregoing, if, under the priorities
described above, LIBOR for an Interest
Determination Date would be based on LIBOR
for the previous Interest
Determination Date for the third
consecutive Interest Determination Date, the
Trust Administrator shall select, after
consultation with the NIMS Insurer, an
alternative comparable index (over which
the Trust Administrator has no
control), used for determining one-month
Eurodollar lending rates that is
calculated and published (or otherwise made
available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for
the Depositor, the Seller, the
Servicers or the Master Servicer,
acceptable to the Trustee, if such opinion is
delivered to the Trustee, or acceptable to
the Trust Administrator, if such
opinion is delivered to the Trust
Administrator, except that any opinion of
counsel relating to (a) the qualification
of any Trust REMIC as a REMIC or (b)
compliance with the REMIC Provisions must
be an opinion of Independent counsel.
"Original Mortgage Loan": Any of the Mortgage Loans included
in REMIC I as of the Closing Date.
"Originator Assignment Agreements": The Assignment and
Recognition Agreements, each dated April
29, 2005, among the Depositor, the
Seller and the related Originator, a form
of which is attached here to as
Exhibit D-2, pursuant to which certain of
the Seller's rights under the related
Master Agreement were assigned to the
Depositor.
"Originator": Any of First Street Financial, Inc., Greenlight
Financial Services, Inc., United Pacific
Mortgage dba Mandalay Mortgage, MILA,
Inc., New Century Mortgage Corporation,
Novelle Financial Services, Inc. and WMC
Mortgage Corp. and American BancShares
Financial Corporation, as the context may
require.
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the amount, if any, by
which the Overcollateralization Target
Amount exceeds the Overcollateralized
Amount on such Distribution Date (after
giving effect to distributions in respect
of the Principal Distribution Amount
on such Distribution Date).
"Overcollateralization Release Amount": With respect to any
Distribution Date, the lesser of (x) the
Principal Remittance Amount for such
Distribution Date and (y) the Excess
Overcollateralized Amount.
"Overcollateralization Target Amount": With respect to any
Distribution Date, (i) approximately 1.00%
of the Cut-off Date Principal Balance
of the Mortgage Loans, (ii) on or after the
Stepdown Date provided a Trigger
Event is not in effect, the greater of (x)
approximately 2.00% of the aggregate
Stated Principal Balance of the Mortgage
Loans as of the last day of the related
Due Period (after giving effect to
scheduled payments of principal due during
the related Due Period, to the extent
received or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (y)
$2,693,224, or (iii) on or after the
Stepdown Date if a Trigger Event is in
effect, the Overcollateralization Target
Amount for the immediately preceding
Distribution Date.
"Overcollateralized Amount": For any Distribution Date, the
amount equal to (i) the aggregate Principal
Balance of the Mortgage Loans as of
the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) as of the
related Determination Date minus (ii) the
sum of the aggregate Certificate Principal
Balance of the Class A Certificates,
the Mezzanine Certificates and the Class P
Certificates as of such Distribution
Date after giving effect to distributions
to be made on such Distribution Date.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate,
including any interest in such
Certificate as the Holder thereof and any
other interest therein, whether direct
or indirect, legal or beneficial, as owner
or as pledgee.
"Pass-Through Rate": With respect to the Class A Certificates
and the Mezzanine Certificates and any
Distribution Date, a rate per annum equal
to the lesser of (i) the related Formula
Rate for such Distribution Date and
(ii) the related Net WAC Rate for such
Distribution Date.
With respect to the Class CE Interest and any Distribution
Date, a rate per annum equal to the
percentage equivalent of a fraction, the
numerator of which is the sum of the
amounts calculated pursuant to clauses (A)
through (Q) below, and the denominator of
which is the aggregate Uncertificated
Balance of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTA1,
I-REMIC I Regular Interest LTA2, REMIC I
Regular Interest I-LTA3, REMIC I
Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6,
REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular
Interest I-LTM9, REMIC I Regular
Interest I-LTM10, REMIC I Regular Interest
I-LTM11 and REMIC I Regular Interest
I-LTZZ. For purposes of calculating the
Pass-Through Rate for the Class CE
Interest, the numerator is equal to the sum
of the following components:
(A) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTAA minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTAA;
(B) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTA1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTA1;
(C) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTA2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTA2;
(D) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTA3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTA3;
(E) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM1;
(F) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM2;
(G) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM3;
(H) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM4;
(I) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM5;
(J) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM6;
(K) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM7 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM7;
(L) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM8 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM8;
(M) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM9 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM9;
(N) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM10 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM10;
(O) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM11 minus the
Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTM11;
(P) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTZZ; and
(Q) 100% of the interest on REMIC I Regular Interest I-LTP.
With respect to the Class CE Certificates, 100% of the
interest distributable to the Class CE
Interest, expressed as a per annum rate.
"Percentage Interest": With respect to any Class of
Certificates (other than the Residual
Certificates), the undivided percentage
ownership in such Class evidenced by such
Certificate, expressed as a
percentage, the numerator of which is the
initial Certificate Principal Balance
or Notional Amount represented by such
Certificate and the denominator of which
is the aggregate initial Certificate
Principal Balance or Notional Amount of all
of the Certificates of such Class. The
Class A Certificates and the Mezzanine
Certificates are issuable only in minimum
Percentage Interests corresponding to
minimum initial Certificate Principal
Balances of $25,000 and integral multiples
of $1.00 in excess thereof. The Class P
Certificates are issuable only in
Percentage Interests corresponding to
initial Certificate Principal Balances of
$20 and integral multiples thereof. The
Class CE Certificates are issuable only
in minimum Percentage Interests
corresponding to minimum initial Certificate
Principal Balances of $10,000 and integral
multiples of $1.00 in excess thereof;
provided, however, that a single
Certificate of each such Class of Certificates
may be issued having a Percentage Interest
corresponding to the remainder of the
aggregate initial Certificate Principal
Balance or Notional Amount of such Class
or to an otherwise authorized denomination
for such Class plus such remainder.
With respect to any Residual Certificate,
the undivided percentage ownership in
such Class evidenced by such Certificate,
as set forth on the face of such
Certificate. The Residual Certificates are
issuable in Percentage Interests of
20% and multiples thereof.
"Periodic Rate Cap": With respect to each Adjustable-Rate
Mortgage Loan and any Adjustment Date
therefor, the fixed percentage set forth
in the related Mortgage Note, which is the
maximum amount by which the Mortgage
Rate for such Mortgage Loan may increase or
decrease (without regard to the
Maximum Mortgage Rate or the Minimum
Mortgage Rate) on such Adjustment Date
(other than the first Adjustment Date) from
the Mortgage Rate in effect
immediately prior to such Adjustment
Date.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a
purchase price of not greater than par,
regardless of whether issued or managed by
the Depositor, the Servicers, the
Master Servicer, the NIMS Insurer, the
Trustee, the Trust Administrator or any
of their respective Affiliates or for which
an Affiliate of the NIMS Insurer,
the Trustee or the Trust Administrator
serves as an advisor:
(1) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States
or
any agency or instrumentality thereof, provided such obligations
are
backed by the full faith and credit of the United States;
(2) (A) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or
its
agent acting in their respective commercial capacities)
incorporated
under the laws
of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual
commitment providing for such investment, such depository
institution
or trust company (or, if the only Rating Agency is S&P, in the
case of
the principal depository institution in a depository
institution
holding company, debt obligations of the depository institution
holding
company) or its ultimate parent has a short-term uninsured debt
rating
in the highest available rating category of Moody's, Fitch and
S&P and
provided that each such investment has an original maturity of no
more
than 365 days; and provided further that, if the only Rating Agency
is
S&P and if the depository or trust company is a principal
subsidiary of
a bank holding company and the debt obligations of such subsidiary
are
not separately rated, the applicable rating shall be that of the
bank
holding company; and, provided further that, if the original
maturity
of such short-term obligations of a domestic branch of a
foreign
depository institution or trust company shall exceed 30 days,
the
short-term rating of such institution shall be A-1+ in the case of
S&P
if S&P is the Rating Agency; and (B) any other demand or time
deposit
or deposit which is fully insured by the FDIC;
(3) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and
entered
into with a depository institution or trust company (acting as
principal) rated A-1+ or higher by S&P, F-1+ or higher by Fitch
and A2
or higher by Moody's, provided, however, that collateral
transferred
pursuant to such repurchase obligation must be of the type
described in
clause (i) above and must (A) be valued daily at current market
prices
plus accrued interest, (B) pursuant to such valuation, be equal, at
all
times, to 105% of the cash transferred by the Trustee in exchange
for
such collateral and (C) be delivered to the Trustee or, if the
Trustee
is supplying the collateral, an agent for the Trustee, in such a
manner
as to accomplish perfection of a security interest in the
collateral by
possession of certificated securities;
(4)
securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the
United
States of America or any State thereof and that are rated by a
Rating
Agency in its highest long-term unsecured rating category at the
time
of such investment or contractual commitment providing for such
investment;
(5) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by a Rating Agency in its
highest
short-term unsecured debt rating available at the time of such
investment;
(6) units of money market funds, including those managed or
advised by the Trust Administrator or its Affiliates, that have
been
rated "AAA" by S&P, "AAA" by Fitch (if so rated by Fitch) and
"Aaa" by
Moody's; and
(7) if previously confirmed in writing to the Trustee and the
Trust Administrator and consented to by the NIMS Insurer, any
other
demand, money market or time deposit, or any other obligation,
security
or investment, as may be acceptable to the Rating Agencies in
writing
as a permitted investment of funds backing securities having
ratings
equivalent to its highest initial rating of the Class A
Certificates;
provided, that no instrument described
hereunder shall evidence either the right
to receive (a) only interest with respect
to the obligations underlying such
instrument or (b) both principal and
interest payments derived from obligations
underlying such instrument and the interest
and principal payments with respect
to such instrument provide a yield to
maturity at par greater than 120% of the
yield to maturity at par of the underlying
obligations.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified
Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including
individual retirement accounts and annuities,
Keogh plans and bank collective investment
funds and insurance company general
or separate accounts in which such plans,
accounts or arrangements are invested,
that are subject to ERISA or Section 4975
of the Code.
"Prepayment Assumption": As defined in the Prospectus
Supplement.
"Prepayment Charge": With respect to any Prepayment Period,
any prepayment premium, fee, penalty or
charge payable by a Mortgagor in
connection with any full or partial
Principal Prepayment on a Mortgage Loan
pursuant to the terms of the related
Mortgage Note.
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges on the Mortgage Loans
included in REMIC I on such date,
attached hereto as Schedule 2 (including
the Prepayment Charge Summary attached
thereto). The Prepayment Charge Schedule
shall set forth the following
information with respect to each related
Mortgage Loan:
(1) the Mortgage Loan identifying number;
(2) a code indicating the type of Prepayment Charge;
(3) the state of origination of the related Mortgage Loan;
(4) the date on which the first monthly payment was due on the
related Mortgage Loan;
(5) the term of the related Mortgage Loan; and
(6) the principal balance of the related Mortgage Loan as of
the Cut-off Date.
The Prepayment Charge Schedule shall be amended from time to
time by the Depositor in accordance with
the provisions of this Agreement and a
copy of such amended Prepayment Charge
Schedule shall be furnished by the
Depositor to the NIMS Insurer.
"Prepayment Interest Shortfall": With respect to any
Distribution Date and each Mortgage Loan
that was the subject of a Principal
Prepayment during the portion of the
related Prepayment Period occurring between
the first day of the related Prepayment
Period and the last day of the calendar
month preceding the month in which such
Distribution Date occurs, an amount
equal to interest on the Mortgage Loan at
the applicable Mortgage Rate on the
amount of such Principal Prepayment for the
number of days commencing on the
date such Principal Prepayment was applied
and ending on the last day of the
calendar month preceding the month in which
such Distribution Date occurs.
"Prepayment Period": With respect to Ocwen, for any
Distribution Date and any Principal
Prepayment in full, the period commencing on
the 16th day of the calendar month
preceding the calendar month in which such
Distribution Date occurs (or, in the case
of the first Distribution Date,
commencing on April 1, 2005) and ending on
the 15th day of the calendar month in
which such Distribution Date occurs and for
any Distribution Date and any
Principal Prepayment in part, is the
calendar month preceding the month in which
such Distribution Date occurs. With respect
to JPMorgan Chase, is the calendar
month preceding the month in which such
Distribution Date occurs.
"Principal Balance": As to any Mortgage Loan other than a
Liquidated Mortgage Loan, and any day, the
related Cut-off Date Principal
Balance, minus all collections credited
against the Cut-off Date Principal
Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have a
Principal Balance equal to the Principal
Balance of the related Mortgage Loan as of
the final recovery of related
Liquidation Proceeds and a Principal
Balance of zero thereafter. As to any REO
Property and any day, the Principal Balance
of the related Mortgage Loan
immediately prior to such Mortgage Loan
becoming REO Property minus any REO
Principal Amortization received with
respect thereto on or prior to such day.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is
received in advance of its scheduled Due
Date and which is not accompanied by an
amount of interest representing the full
amount of scheduled interest due on any Due
Date in any month or months
subsequent to the month of prepayment.
"Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) each
scheduled payment of principal collected
or advanced on the Mortgage Loans by the
Servicers that were due during the
related Due Period, (ii) the principal
portion of all partial and full Principal
Prepayments of the Mortgage Loans applied
by the Servicers during the related
Prepayment Period, (iii) the principal
portion of all related Net Liquidation
Proceeds, Insurance Proceeds and Subsequent
Recoveries received during such
Prepayment Period with respect to the
Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of
any repurchased Mortgage Loan,
deposited to the Distribution Account
during such Prepayment Period, (v) the
principal portion of any related
Substitution Adjustment Amounts deposited in
the Distribution Account during such
Prepayment Period with respect to the
Mortgage Loans and (vi) on the Distribution
Date on which the Trust Fund is to
be terminated pursuant to Section 9.01,
that portion of the Termination Price,
in respect of principal on the Mortgage
Loans.
"Prospectus Supplement": That certain Prospectus Supplement
dated April 26, 2005 relating to the public
offering of the Class A Certificates
and the Mezzanine Certificates (other than
the Class M-11 Certificates).
"PTCE": A Prohibited Transaction Class Exemption issued by the
United States Department of Labor which
provides that exemptive relief is
available to any party to any transaction
which satisfies the conditions of the
exemption.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as
contemplated by Section 2.03 or
Section 9.01, and as confirmed by an
Officer's Certificate from the related
Servicer to the Trustee an amount equal to
the sum of (i) 100% of the Stated
Principal Balance thereof as of the date of
purchase (or such other price as
provided in Section 9.01), (ii) in the case
of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance
at the applicable Net Mortgage Rate in
effect from time to time from the Due Date
as to which interest was last covered
by a payment by the Mortgagor or an advance
by the related Servicer, which
payment or advance had as of the date of
purchase been distributed pursuant to
Section 4.01, through the end of the
calendar month in which the purchase is to
be effected and (y) an REO Property, the
sum of (1) accrued interest on such
Stated Principal Balance at the applicable
Net Mortgage Rate in effect from time
to time from the Due Date as to which
interest was last covered by a payment by
the Mortgagor or an advance by the related
Servicer through the end of the
calendar month immediately preceding the
calendar month in which such REO
Property was acquired, plus (2) REO Imputed
Interest for such REO Property for
each calendar month commencing with the
calendar month in which such REO
Property was acquired and ending with the
calendar month in which such purchase
is to be effected, net of the total of all
net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had
been distributed as or to cover REO Imputed
Interest pursuant to Section 4.01,
(iii) any unreimbursed Servicing Advances
and Advances (including Nonrecoverable
Advances and Nonrecoverable Servicing
Advances) and any unpaid Servicing Fees
allocable to such Mortgage Loan or REO
Property, (iv) any amounts previously
withdrawn from the Custodial Account or the
Distribution Account in respect of
such Mortgage Loan or REO Property, and (v)
in the case of a Mortgage Loan
required to be purchased pursuant to
Section 2.03, expenses reasonably incurred
or to be incurred by the Servicers, the
Master Servicer, the NIMS Insurer, the
Trust Administrator or the Trustee in
respect of the breach or defect giving
rise to the purchase obligation including
any costs and damages incurred by the
Trust in connection with any violation by
such loan of any predatory or abusive
lending law. With respect to each
Originator and any Mortgage Loan or REO
Property to be purchased pursuant to or as
contemplated by Section 2.03 or
10.01, and as confirmed by a certificate of
a Servicing Officer to the Trustee
and the Master Servicer, an amount equal to
the amount set forth pursuant to the
terms of the related Master Agreement.
"Qualified Substitute Mortgage Loan": With respect to the
Seller, a mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the
terms of this Agreement which must, on the
date of such substitution, (i) have
an outstanding Stated Principal Balance (or
in the case of a substitution of
more than one mortgage loan for a Deleted
Mortgage Loan, an aggregate Stated
Principal Balance), after application of
all scheduled payments of principal and
interest due during or prior to the month
of substitution, not in excess of, and
not more than 5% less than, the outstanding
Stated Principal Balance of the
Deleted Mortgage Loan as of the Due Date in
the calendar month during which the
substitution occurs, (ii) have a Mortgage
Rate not less than (and not more than
one percentage point in excess of) the
Mortgage Rate of the Deleted Mortgage
Loan, (iii) if the Qualified Substitute
Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a Maximum Mortgage Rate
not less than the Maximum Mortgage
Rate on the Deleted Mortgage Loan, (iv) if
the Qualified Substitute Mortgage
Loan is an Adjustable-Rate Mortgage Loan,
have a Minimum Mortgage Rate not less
than the Minimum Mortgage Rate of the
Deleted Mortgage Loan, (v) if the
Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a
Gross Margin equal to or greater than the
Gross Margin of the Deleted Mortgage
Loan, (vi) if the Qualified Substitute
Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a next Adjustment Date
not more than two months later than
the next Adjustment Date on the Deleted
Mortgage Loan, (vii) reserved, (viii)
have a remaining term to maturity not
greater than (and not more than one year
less than) that of the Deleted Mortgage
Loan, (ix) be current as of the date of
substitution, (x) have a Loan-to-Value
Ratio as of the date of substitution
equal to or lower than the Loan-to-Value
Ratio of the Deleted Mortgage Loan as
of such date, (xi) have a risk grading
determined by the Originator at least
equal to the risk grading assigned on the
Deleted Mortgage Loan, (xii) have been
underwritten or reunderwritten by the
related Originator in accordance with the
same underwriting criteria and guidelines
as the Deleted Mortgage Loan and
(xiii) conform to each representation and
warranty assigned to the Depositor
pursuant to the related Assignment
Agreement applicable to the Deleted Mortgage
Loan. In the event that one or more
mortgage loans are substituted for one or
more Deleted Mortgage Loans, the amounts
described in clause (i) hereof shall be
determined on the basis of aggregate Stated
Principal Balances, the Mortgage
Rates described in clauses (ii) through
(vi) hereof shall be satisfied for each
such mortgage loan, the risk gradings
described in clause (xi) hereof shall be
satisfied as to each such mortgage loan,
the terms described in clause (viii)
hereof shall be determined on the basis of
weighted average remaining term to
maturity (provided that no such mortgage
loan may have a remaining term to
maturity longer than the Deleted Mortgage
Loan), the Loan-to-Value Ratios
described in clause (x) hereof shall be
satisfied as to each such mortgage loan
and, except to the extent otherwise
provided in this sentence, the
representations and warranties described in
clause (xiii) hereof must be
satisfied as to each Qualified Substitute
Mortgage Loan or in the aggregate, as
the case may be. With respect to each
Originator, a mortgage loan substituted
for a Deleted Mortgage Loan pursuant to the
terms of the related Master
Agreement which must, on the date of such
substitution conform to the terms set
forth in the related Master Agreement.
"Rating Agency" or "Rating Agencies": Moody's, Fitch and
S&P
or their successors. If such agencies or
their successors are no longer in
existence, "Rating Agencies" shall be such
nationally recognized statistical
rating agencies, or other comparable
Persons, designated by the Depositor,
notice of which designation shall be given
to the Trustee and the Master
Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan
or any Mortgage Loan charged off by the
related Servicer pursuant to the related
Servicing Agreement, the amount of loss
realized equal to the portion of the
Stated Principal Balance remaining unpaid
after application of all Net
Liquidation Proceeds in respect of such
Mortgage Loan. If the related Servicer
receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of
the Realized Loss with respect to that
Mortgage Loan will be reduced to the
extent such recoveries are applied to
principal distributions on any
Distribution Date.
"Record Date": With respect to each Distribution Date and any
Book-Entry Certificate, the Business Day
immediately preceding such Distribution
Date. With respect to each Distribution
Date and any other Certificates,
including any Definitive Certificates, the
last Business Day of the month
immediately preceding the month in which
such Distribution Date occurs.
"Reference Banks": Bankers Trust Company, Barclay's Bank PLC,
The Tokyo Mitsubishi Bank and National
Westminster Bank PLC and their successors
in interest; provided, however, that if any
of the foregoing banks are not
suitable to serve as a Reference Bank, then
any leading banks selected by the
Trust Administrator (after consultation
with the NIMS Insurer) which are engaged
in transactions in Eurodollar deposits in
the international Eurocurrency market
(i) with an established place of business
in London, (ii) not controlling, under
the control of or under common control with
the Depositor or any Affiliate
thereof and (iii) which have been
designated as such by the Trust Administrator.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related
Mortgaged Property.
"Regular
Certificate": Any Class A Certificate, Mezzanine
Certificate, Class CE Certificate or Class
P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the
Code.
"Relief Act": The Servicemembers Civil Relief Act.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan,
any reduction in the amount of interest
collectible on such Mortgage Loan for the
most recently ended calendar month as
a result of the application of the Relief
Act.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the
Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created
hereby and to be administered hereunder,
with respect to which a REMIC election is
to be made, consisting of: (i) such
Mortgage Loans and Prepayment Charges as
from time to time are subject to this
Agreement, together with the Mortgage Files
relating thereto, and together with
all collections thereon and proceeds
thereof; (ii) any REO Property, together
with all collections thereon and proceeds
thereof; (iii) the Trustee's rights
with respect to the Mortgage Loans under
all insurance policies, required to be
maintained pursuant to this Agreement or
either Servicing Agreement and any
proceeds thereof; (iv) the Depositor's
rights under the Mortgage Loan Purchase
Agreement (including any security interest
created thereby) and the Master
Agreements (assigned to the Depositor
pursuant to the Originator Assignment
Agreements); (v) the rights of the Trustee
under the Servicing Agreements and
the Servicer Assignment Agreements relating
thereto and (vi) the Custodial
Account and the Distribution Account, and
such assets that are deposited therein
from time to time and any investments
thereof, together with any and all income,
proceeds and payments with respect thereto.
Notwithstanding the foregoing,
however, REMIC I specifically excludes the
Net WAC Rate Carryover Reserve
Account, the Cap Contracts, all payments
and other collections of principal and
interest due on the Mortgage Loans on or
before the Cut-off Date and all
Prepayment Charges payable in connection
with Principal Prepayments made before
the Cut-off Date.
"REMIC I Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount (subject to
adjustment based on the actual number
of days elapsed in the respective Accrual
Periods for the indicated Regular
Interests for such Distribution Date) equal
to (a) the product of (i) the
aggregate Stated Principal Balance of the
Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC I Remittance
Rate for REMIC I Regular Interest
I-LTAA minus the Marker Rate, divided by
(b) 12.
"REMIC I Overcollateralized Amount": With respect to any date
of determination, (i) the aggregate
Uncertificated Balances of the REMIC I
Regular Interests minus (ii) the aggregate
of the Uncertificated Balances of
REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular
Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5,
REMIC I Regular Interest I-LTM6, REMIC
I Regular Interest I-LTM7, REMIC I Regular
Interest I-LTM8, REMIC I Regular
Interest I-LTM9, REMIC I Regular Interest
I-LTM10, REMIC I Regular Interest
I-LTM11 and REMIC I Regular Interest I-LTP,
in each case as of such date of
determination.
"REMIC I Principal Loss Allocation Amount": With respect to
any Distribution Date, an amount equal to
the product of (i) the aggregate
Stated Principal Balance of the Mortgage
Loans and REO Properties then
outstanding and (ii) 1 minus a fraction,
the numerator of which is two times the
aggregate of the Uncertificated Balances of
REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I
Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6,
REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular
Interest I-LTM9, REMIC I Regular
Interest I-LTM10 and REMIC I Regular
Interest I-LTM11 and the denominator of
which is the aggregate of the
Uncertificated Balances of REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTM1,
REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTM8,
REMIC I Regular Interest I-LTM9, REMIC
I Regular Interest I-LTM10, REMIC I Regular
Interest I-LTM11 and REMIC I Regular
Interest I-LTZZ.
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC
I. Each REMIC I Regular Interest
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto. The
designations for the respective REMIC I
Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTAA": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTAA
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA1": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTA1
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA2": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTA2
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA3": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTA3
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM1": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM1
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM2": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM2
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM3": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM3
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM4": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM4
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM5": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM5
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM6": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM6
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM7": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM7
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM8": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM8
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM9": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM9
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM10": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM10
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM11": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTM11
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTP": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTP
shall be entitled to any Prepayment Charges
collected by the Master Servicer and
to a distribution of principal, subject to
the terms and conditions hereof, in
an aggregate amount equal to its initial
Uncertificated Balance as set forth in
the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTZZ": One of the separate
non-certificated beneficial ownership
interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC
I. REMIC I Regular Interest I-LTZZ
shall accrue interest at the related REMIC
I Remittance Rate in effect from time
to time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Balance as set forth in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to REMIC I Regular
Interest I-LTAA, REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTA3,
REMIC I Regular Interest I-LTM1, REMIC
I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7,
REMIC I Regular Interest I-LTM8, REMIC
I Regular Interest I-LTM9, REMIC I Regular
Interest I-LTM10, REMIC I Regular
Interest I-LTM11, REMIC I Regular Interest
I-LTZZ and REMIC I Regular Interest
I-LTP, the weighted average of the Adjusted
Net Mortgage Rates of the Mortgage
Loans.
"REMIC I Required Overcollateralized Amount": 1.00% of the
Overcollateralization Target Amount.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in
trust to the Trustee, for the benefit
of the REMIC II Certificateholders pursuant
to Section 2.07, and all amounts
deposited therein, with respect to which a
separate REMIC election is to be
made.
"REMIC II Certificate": Any Regular Certificate (other than a
Class CE Certificate or Class P
Certificate) or Class R Certificate.
"REMIC II Certificateholder": The Holder of any REMIC II
Certificate.
"REMIC II Regular Interest": Any Class A Certificate,
Mezzanine Certificate, the Class CE
Interest or the Class P Interest.
"REMIC III": The segregated pool of assets consisting of all
of the Class CE Interest conveyed in trust
to the Trustee, for the benefit of
the Holders of the Regular Certificates and
the Class R-X Certificate (in
respect of the Class R-III Interest),
pursuant to Article II hereunder, and all
amounts deposited therein, with respect to
which a separate REMIC election is to
be made.
"REMIC IV": The segregated pool of assets consisting of all of
the Class P Interest conveyed in trust to
the Trustee, for the benefit of the
Holders of the Regular Certificates and the
Class R-X Certificate (in respect of
the Class R-IV Interest), pursuant to
Article II hereunder, and all amounts
deposited therein, with respect to which a
separate REMIC election is to be
made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment
conduits, which appear at Section
860A through 860G of the Code, and related
provisions, and proposed, temporary
and final regulations and published
rulings, notices and announcements
promulgated thereunder, as the foregoing
may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in
Section 856(d) of the Code as being
included in the term "rents from real
property."
"REO Disposition": The sale or other disposition of an REO
Property on behalf of REMIC I.
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO
Property was at any time part of REMIC I,
one month's interest at the applicable Net
Mortgage Rate on the Stated Principal
Balance of such REO Property (or, in the
case of the first such calendar month,
of the related Mortgage Loan, if
appropriate) as of the close of business on the
Distribution Date in such calendar
month.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the
excess, if any, of (a) the aggregate of
all amounts received in respect of such REO
Property during such calendar month,
whether in the form of rental income, sale
proceeds (including, without
limitation, that portion of the Termination
Price paid in connection with a
purchase of all of the Mortgage Loans and
REO Properties pursuant to Section
9.01 that is allocable to such REO
Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to the
related Servicing Agreement in respect
of the proper operation, management and
maintenance of such REO Property or (ii)
payable or reimbursable to the related
Servicer for unpaid Servicing Fees in
respect of the related Mortgage Loan and
unreimbursed Servicing Advances and
Advances in respect of such REO Property or
the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such
REO Property for such calendar
month.
"REO Property": A Mortgaged Property acquired by the related
Servicer on behalf of REMIC I through
foreclosure or deed-in-lieu of
foreclosure.
"Request for Release": A request for release in such
electronic or other format as shall be
mutually agreeable by the Trust
Administrator and the related Servicer, in
substantially the form of Exhibit E
attached hereto.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that
the Trust Administrator determines
to be either (i) the arithmetic mean
(rounded upwards if necessary to the
nearest whole multiple of 1/16%) of the
one-month U.S. dollar lending rates
which New York City banks selected by the
Trust Administrator are quoting on the
relevant Interest Determination Date to the
principal London offices of leading
banks in the London interbank market or
(ii) in the event that the Trust
Administrator can determine no such
arithmetic mean, the lowest one-month U.S.
dollar lending rate which New York City
banks selected by the Trust
Administrator are quoting on such Interest
Determination Date to leading
European banks.
"Residential Dwelling": Any one of the following: (i) a
detached one-family dwelling, (ii) a
detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a
Fannie Mae eligible condominium project,
(iv) a manufactured home, or (v) a detached
one-family dwelling in a planned
unit development, none of which is a
co-operative or mobile home.
"Residual Certificate": Any one of the Class R Certificates
and the Class R-X Certificates.
"Residual Interest": The sole class of "residual interests" in
a REMIC within the meaning of Section
860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee
or the Trust Administrator, the Chairman or
Vice Chairman of the Board of
Directors or Trustees, the Chairman or Vice
Chairman of the Executive or
Standing Committee of the Board of
Directors or Trustees, the President, the
Chairman of the Committee on Trust Matters,
any vice president, any assistant
vice president, the Secretary, any
assistant secretary, the Treasurer, any
assistant treasurer, the Cashier, any
assistant cashier, any trust officer or
assistant trust officer, the Controller and
any assistant controller or any
other officer of the Trustee or the Trust
Administrator, as applicable,
customarily performing functions similar to
those performed by any of the above
designated officers and, with respect to a
particular matter relating to this
Agreement, to whom such matter is referred
because of such officer's knowledge
of and familiarity with the particular
subject.
"S&P": Standard & Poor's Ratings Services, a division of
the
McGraw-Hill Companies, Inc., or its
successor in interest.
"Seller": UBS Real Estate Securities Inc. or its successor in
interest, in its capacity as seller under
the Mortgage Loan Purchase Agreement.
"Senior Principal Distribution Amount": The excess of (x) the
aggregate Certificate Principal Balance of
the Class A Certificates immediately
prior to such Distribution Date over (y)
the lesser of (A) the product of (i)
56.20% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) and (B) the
excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) over $2,693,224.
"Servicer": With respect to each Mortgage Loan, either Ocwen
Federal Bank FSB ("Ocwen") or JPMorgan
Chase Bank ("JPMorgan"), as indicated on
the Mortgage Loan Schedule attached
hereto.
"Servicer Assignment Agreement": The Assignment, Assumption
and Recognition Agreement, a form of which
is attached hereto as part of Exhibit
B, whereby the related Servicing Agreement
was assigned to the Depositor.
"Servicer Remittance Date": (i) With respect to Ocwen and any
Distribution Date, the 18th day of the
calendar month in which such Distribution
Date occurs or, if such 18th day is not a
Business Day, the Business Day
immediately preceding such 18th day (ii)
with respect to JPMorgan and any
Distribution Date will be the 24th day of
the calendar month in which such
Distribution Date occurs or, if such 24th
day is not a Business Day, the
business day immediately preceding such
24th day.
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses other
than Advances (including reasonable
attorneys' fees and disbursements) incurred
by the related Servicer in the
performance of its servicing obligations,
including, but not limited to, the
cost of (i) the preservation, restoration,
inspection and protection of the
Mortgaged Property, (ii) any enforcement,
administrative or judicial
proceedings, including foreclosures, in
respect of a particular Mortgage Loan,
(iii) the management and liquidation of the
REO Property (including any fees of
an independent contractor (such as a real
estate broker) engaged by a servicer
in connection with such activity) and (iv)
taxes, assessments, water rates,
sewer rents and other charges which are or
may become a lien upon the Mortgaged
Property.
"Servicing Agreement": With respect to Ocwen, the Amended and
Restated Interim Servicing and Servicing
Rights Purchase Agreement, dated as of
January 1, 2005, between Ocwen Federal Bank
FSB as Servicer and the Seller as
Owner (which servicing agreement has been
assigned to the Trustee, as successor
to the Seller, and modified pursuant to the
related Servicer Assignment
Agreement), and with respect to JPMorgan,
the Servicing Agreement, dated May 1,
2004, between Chase Manhattan Mortgage
Corporation, predecessor in interest to
JPMorgan, as seller and the Seller as
purchaser (which servicing agreement has
been assigned to the Trustee, as successor
to the Seller, and modified pursuant
to the related Servicer Assignment
Agreement).
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to
one-twelfth of the Servicing Fee Rate
(without regards to the words "per annum"
in the definition thereof) multiplied
by the Stated Principal Balance of the
Mortgage Loans as of the first day of the
related Due Period.
"Servicing Fee Rate": 0.50% per annum.
"Servicing Officer": With respect to each Servicer, any
officer of the Servicer involved in or
responsible for, the administration and
servicing of the Mortgage Loans whose name
appears on a list of servicing
officers furnished by such Servicer to the
Master Servicer, the Trust
Administrator and the Trustee upon request,
as such list may from time to time
be amended. With respect to the Master
Servicer, any officer of the Master
Servicer involved in or responsible for,
the administration and master servicing
of the Mortgage Loans whose name appears on
a list of master servicing officers
furnished by the Master Servicer to the
Trust Administrator and the Trustee upon
request, as such list may from time to time
be amended.
"Servicing Transfer Costs": Shall mean all reasonable costs
and expenses incurred by the Trustee in
connection with the transfer of
servicing from a predecessor Master
Servicer, including, without limitation, any
reasonable costs or expenses associated
with the complete transfer of all
servicing data and the completion,
correction or manipulation of such servicing
data as may be required by the Trustee to
correct any errors or insufficiencies
in the servicing data or otherwise to
enable the Trustee to master service the
Mortgage Loans properly and
effectively.
"Single Certificate": With respect to any Class of
Certificates (other than the Class P
Certificates and the Residual
Certificates), a hypothetical Certificate
of such Class evidencing a Percentage
Interest for such Class corresponding to an
initial Certificate Principal
Balance of $1,000. With respect to the
Class P Certificates and the Residual
Certificates, a hypothetical Certificate of
such Class evidencing a 100%
Percentage Interest in such Class.
"Startup Day": With respect to each Trust REMIC, the day
designated as such pursuant to Section
10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to
but not including the Distribution
Date on which the proceeds, if any, of a
Liquidation Event with respect to such
Mortgage Loan would be distributed, the
Cut-off Date Principal Balance of such
Mortgage Loan, as shown in the Mortgage
Loan Schedule, minus the sum of (i) the
principal portion of each Monthly Payment
due on a Due Date subsequent to the
Cut-off Date, to the extent received from
the Mortgagor or advanced by the
related Servicer and distributed pursuant
to Section 4.01 on or before such date
of determination, (ii) all Principal
Prepayments received after the Cut-off
Date, to the extent distributed pursuant to
Section 4.01 on or before such date
of determination, (iii) all Liquidation
Proceeds and Insurance Proceeds applied
by the related Servicer as recoveries of
principal, to the extent distributed
pursuant to Section 4.01 on or before such
date of determination, and (iv) any
Realized Loss incurred with respect thereto
as a result of a Deficient Valuation
made during or prior to the Prepayment
Period for the most recent Distribution
Date coinciding with or preceding such date
of determination; and (b) as of any
date of determination coinciding with or
subsequent to the Distribution Date on
which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage
Loan would be distributed, zero. With
respect to any REO Property: (a) as of any
date of determination up to but not
including the Distribution Date on which the
proceeds, if any, of a Liquidation Event
with respect to such REO Property would
be distributed, an amount (not less than
zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of
the date on which such REO Property
was acquired on behalf of REMIC I, minus
the sum of (i) if such REO Property was
acquired before the Distribution Date in
any calendar month, the principal
portion of the Monthly Payment due on the
Due Date in the calendar month of
acquisition, to the extent advanced by the
related Servicer and distributed
pursuant to Section 4.01 on or before such
date of determination, and (ii) the
aggregate amount of REO Principal
Amortization in respect of such REO Property
for all previously ended calendar months,
to the extent distributed pursuant to
Section 4.01 on or before such date of
determination; and (b) as of any date of
determination coinciding with or subsequent
to the Distribution Date on which
the proceeds, if any, of a Liquidation
Event with respect to such REO Property
would be distributed, zero.
"Stepdown Date": The earlier to occur of (i) the Distribution
Date on which the aggregate Certificate
Principal Balance of the Class A
Certificates has been reduced to zero and
(ii) the later to occur of (x) the
Distribution Date occurring in May 2008 and
(y) the first Distribution Date on
which the Credit Enhancement Percentage
(calculated for this purpose only after
taking into account payments of principal
on the Mortgage Loans but prior to
distribution of the Principal Distribution
Amount to the Certificates then
entitled to distributions of principal on
such Distribution Date) is equal to or
greater than 43.80%.
"Sub-Servicer": Any Person with which a Servicer has entered
into a Sub-Servicing Agreement meeting the
requirements set forth in the related
Servicing Agreement.
"Sub-Servicing Agreement": The written contract between a
Servicer and a Sub-Servicer relating to
servicing and administration of certain
Mortgage Loans meeting the requirements set
forth in the related Servicing
Agreement.
"Subsequent Recoveries": As of any Distribution Date,
unexpected amounts received by a Servicer
(net of any related expenses permitted
to be reimbursed to the related Servicer or
the Master Servicer) specifically
related to a Mortgage Loan that was the
subject of a liquidation or an REO
Disposition prior to the related Prepayment
Period that resulted in a Realized
Loss.
"Substitution Adjustment Amount": As defined in Section
2.03(b).
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate
Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto,
Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss
Allocation, or any successor forms,
to be filed on behalf of the Trust Fund due
to the classification of portions
thereof as REMICs under the REMIC
Provisions, together with any and all other
information reports or returns that may be
required to be furnished to the
Certificateholders or filed with the
Internal Revenue Service or any other
governmental taxing authority under any
applicable provisions of federal, state
or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on
the Dow Jones Telerate Capital Markets
Report (or such other page as may replace
page 3750 on that report for the purpose of
displaying London interbank offered
rates of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment
of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect with respect to
any Distribution Date on or after the
Stepdown Date if:
(a) the percentage obtained by dividing (x) the aggregate
Stated Principal Balance of Mortgage Loans
Delinquent 60 days or more or are in
foreclosure, have been converted to REO
Properties or have been discharged by
reason of bankruptcy by (y) the aggregate
Stated Principal Balance of the
Mortgage Loans, in each case, as of the
last day of the previous calendar month,
exceeds 36.50% of the Credit Enhancement
Percentage of the Class A Certificates;
or
(b) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the
related Due Period (reduced by the
aggregate amount of Subsequent Recoveries
received since the Cut-off Date
through the last day of the related Due
Period) divided by the aggregate
principal balance of the Mortgage Loans as
of the Cut-off Date exceeds the
applicable percentages set forth below with
respect to such Distribution Date:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN
PERCENTAGE
------------------------------
----------
<S>
<C>
May 2008 through April 2009
3.00%, plus 1/12 of 1.50% for
each month thereafter
May 2009 through April 2010
4.50%, plus 1/12 of 1.50% for
each month thereafter
May 2010 through April 2011
6.00%, plus 1/12 of 0.75% for
each month thereafter
May 2011 and thereafter
6.75%
</TABLE>
"Trust Administrator": Wells Fargo Bank, N.A., or its
successor in interest, or any successor
trust administrator appointed as herein
provided.
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II, REMIC III, REMIC IV, the Net WAC
Rate Carryover Reserve Account, the
Cap Contracts and the other assets conveyed
by the Depositor to the Trustee
pursuant to Section 2.01.
"Trust REMIC": Any of REMIC I, REMIC II, REMIC III or REMIC
IV.
"Trustee": U.S. Bank National Association, a national banking
association, or its successor in interest,
or any successor trustee appointed as
herein provided.
"Uncertificated Balance": The amount of any REMIC I Regular
Interest outstanding as of any date of
determination. As of the Closing Date,
the Uncertificated Balance of each REMIC I
Regular Interest shall equal the
amount set forth in the Preliminary
Statement hereto as its initial
uncertificated balance. On each
Distribution Date, the Uncertificated Balance of
each REMIC I Regular Interest shall be
reduced by all distributions of principal
made on such REMIC I Regular Interest on
such Distribution Date pursuant to
Section 4.01 and, if and to the extent
necessary and appropriate, shall be
further reduced on such Distribution Date
by Realized Losses as provided in
Section 4.04. The Uncertificated Balance of
REMIC I Regular Interest I-LTZZ
shall be increased by interest deferrals as
provided in Section 4.01(a)(1)(i).
The Uncertificated Balance of each REMIC I
Regular Interest shall never be less
than zero. With respect to the Class CE
Interest as of any date of
determination, an amount equal to the
excess, if any, of (A) the then aggregate
Uncertificated Principal Balances of the
REMIC I Regular Interests over (B) the
then aggregate Certificate Principal
Balances of the Class A Certificates,
Mezzanine Certificates and the Class P
Interest then outstanding.
"Uncertificated Interest": With respect to any REMIC I Regular
Interest for any Distribution Date, one
month's interest at the REMIC I
Remittance Rate applicable to such REMIC I
Regular Interest for such
Distribution Date, accrued on the
Uncertificated Balance thereof immediately
prior to such Distribution Date.
Uncertificated Interest in respect of any REMIC
I Regular Interest shall accrue on the
basis of a 360-day year consisting of
twelve 30-day months. Uncertificated
Interest with respect to each Distribution
Date, as to any REMIC I Regular Interest,
shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment
Interest Shortfall, if any, for such
Distribution Date to the extent not covered
by Compensating Interest and (b) the
aggregate amount of any Relief Act Interest
Shortfall, if any allocated, in each
case, to such REMIC I Regular Interest
pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to
each Distribution Date, as to any REMIC
I Regular Interest shall be reduced by
Realized Losses, if any, allocated to
such REMIC I Regular Interest pursuant to
Section 1.02 and Section 4.04.
"Underwriters' Exemption": As defined in the Prospectus
Supplement.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such
property is not fully reimbursable by
the hazard insurance policies required to
be maintained pursuant to the
Servicing Agreement.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other
entity created or organized in, or
under the laws of, the United States, any
state thereof or, District of Columbia
(except, in the case of a partnership, to
the extent provided in regulations)
provided that, for purposes solely of the
restrictions on the transfer of Class
R Certificates, no partnership or other
entity treated as a partnership for
United States federal income tax purposes
shall be treated as a United States
Person unless all persons that own an
interest in such partnership either
directly or through any entity that is not
a corporation for United States
federal income tax purposes are required by
the applicable operative agreement
to be United States Persons or an estate
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
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. The
term "United States" shall have the
meaning set forth in Section 7701 of the
Code.
"Unpaid Interest Shortfall Amount": With respect to the Class
A Certificates and the Mezzanine
Certificates and (i) the first Distribution
Date, zero, and (ii) any Distribution Date
after the first Distribution Date,
the amount, if any, by which (a) the sum of
(1) the Monthly Interest
Distributable Amount for such Class for the
immediately preceding Distribution
Date and (2) the outstanding Unpaid
Interest Shortfall Amount, if any, for such
Class for such preceding Distribution Date
exceeds (b) the aggregate amount
distributed on such Class in respect of
interest pursuant to clause (a) of this
definition on such preceding Distribution
Date, plus interest on the amount of
interest due but not paid on the
Certificates of such Class on such preceding
Distribution Date, to the extent permitted
by law, at the Pass-Through Rate for
such Class for the related Accrual
Period.
"Value": With respect to any Mortgage Loan, and the related
Mortgaged Property, the lesser of:
(1) the lesser
of (a) the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the
time of origination of the Mortgage Loan by an appraiser who
met the minimum requirements of Fannie Mae and Freddie Mac,
and (b) the value thereof as determined by a review appraisal
conducted by the related Originator in the event any such
review appraisal determines an appraised value more than 10%
lower than the value thereof, in the case of a Mortgaged Loan
with a Loan-to-Value Ratio less than or equal to 80%, or more
than 5% lower than the value thereof, in the case of a
Mortgage Loan with a Loan-to-Value Ratio greater than 80%, as
determined by the appraisal referred to in clause (i)(a)
above; and
(2) the
purchase price paid for the related Mortgaged Property by
the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a refinanced Mortgage
Loan (which is a Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property) or a Mortgage
Loan originated in connection with a "lease option purchase"
if the "lease option purchase price" was set 12 months or more
prior to origination, such value of the Mortgaged Property is
based solely upon clause (i) above.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any
Certificate. With respect to any date
of determination, 98% of all Voting Rights
will be allocated among the holders
of the Class A Certificates, the Mezzanine
Certificates and the Class CE
Certificates in proportion to the then
outstanding Certificate Principal
Balances of their respective Certificates,
1% of all Voting Rights will be
allocated to the holders of the Class P
Certificates and 1% of all Voting Rights
will be allocated among the holders of the
Residual Certificates. The Voting
Rights allocated to each Class of
Certificate shall be allocated among Holders
of each such Class in accordance with their
respective Percentage Interests as
of the most recent Record Date.
SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of the Monthly Interest
Distributable Amount for the Class A
Certificates, the Mezzanine Certificates
and the Class CE Certificates for any
Distribution Date, (1) the aggregate
amount of any Prepayment Interest
Shortfalls (to the extent not covered by
Compensating Interest payments by the
related Servicer or the Master Servicer)
and any Relief Act Interest Shortfall
incurred in respect of the Mortgage Loans
for any Distribution Date shall be
allocated first, to the Class CE Certificates
based on, and to the extent of, one month's
interest at the then applicable
respective Pass-Through Rate on the
respective Notional Amount of each such
Certificate and, thereafter, among the
Class A Certificates and the Mezzanine
Certificates on a PRO RATA basis based on,
and to the extent of, one month's
interest at the then applicable respective
Pass-Through Rate on the respective
Certificate Principal Balance of each such
Certificate and (2) the aggregate
amount of any Realized Losses and Net WAC
Rate Carryover Amounts incurred for
any Distribution Date shall be allocated to
the Class CE Certificates based on,
and to the extent of, one month's interest
at the then applicable respective
Pass-Through Rate on the respective
Notional Amount of each such Certificate.
For purposes of calculating the amount of Uncertificated
Interest for the REMIC I Regular Interests
for any Distribution Date:
(A) The
aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments by the Master Servicer
pursuant to Section 3.18) and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1,
REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I
Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8,
REMIC I Regular Interest I-LTM9, REMIC I Regular Interest
I-LTM10, REMIC I Regular Interest I-LTM11 and REMIC I Regular
Interest I-LTZZ PRO RATA based on, and to the extent of, one
month's interest at the then applicable respective
Pass-Through Rate on the respective Uncertificated Balance of
each such REMIC I Regular Interest; and
(B)
[Reserved].
SECTION 1.03. Rights of the NIMS Insurer.
Each of the rights of the NIMS Insurer set forth in this
Agreement shall exist so long as (i) the
NIMS Insurer has undertaken to
guarantee certain payments of notes issued
pursuant to the Indenture and (ii)
the notes issued pursuant to the Indenture
remain outstanding or the NIMS
Insurer is owed amounts in respect of its
guarantee of payment on such notes;
provided, however, the NIMS Insurer shall
not have any rights hereunder (except
pursuant to Section 11.01 and any rights to
indemnification hereunder in the
case of clause (ii) below) so long as (i)
the NIMS Insurer has not undertaken to
guarantee certain payments of notes issued
pursuant to the Indenture or (ii) any
default has occurred and is continuing
under the insurance policy issued by the
NIMS Insurer with respect to such
notes.
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set
over and otherwise convey to the
Trustee without recourse, for the benefit
of the Certificateholders, all the
right, title and interest of the Depositor,
including any security interest
therein for the benefit of the Depositor,
in and to the Mortgage Loans
identified on the Mortgage Loan Schedule,
the rights of the Depositor under the
Mortgage Loan Purchase Agreement, the
Master Agreements (as assigned to the
Depositor pursuant to the Originator
Assignment Agreements) and the Servicing
Agreements (as assigned to the Depositor
pursuant to the Servicer Assignment
Agreements), and all other assets included
or to be included in REMIC I. Such
assignment includes all interest and
principal received by the Depositor or the
Master Servicer on or with respect to the
Mortgage Loans (other than payments of
principal and interest due on such Mortgage
Loans on or before the Cut-off
Date). The Depositor herewith delivers to
the Trustee an executed original
Mortgage Loan Purchase Agreement and
execution copies of the Servicing
Agreements and the Master Agreements.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with,
the Trust Administrator, the Trustee
or the Custodian, with respect the related
Mortgage Loans, the following
documents or instruments with respect to
each Mortgage Loan so transferred and
assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank or in the
following form: "Pay to the order of U.S. Bank National
Association, as
Trustee under the applicable agreement, without recourse," with
all
prior and intervening endorsements showing a complete chain of
endorsement from the originator to the Person so endorsing to
the
Trustee;
(ii) the original Mortgage, noting the presence of the MIN of
the Mortgage Loan and language indicating that the Mortgage Loan is
a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of
recording
thereon, and the original recorded power of attorney, if the
Mortgage
was executed pursuant to a power of attorney, with evidence of
recording thereon;
(iii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee (or to MERS, if the Mortgage
Loan
is registered on the MERS(R) System and noting the presence of the
MIN)
as contemplated by the immediately preceding clause (iii);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy, together
with all endorsements or riders that were issued with or subsequent
to
the issuance of such policy, insuring the priority of the Mortgage
as a
first or second lien on the Mortgaged Property represented therein
as a
fee interest vested in the Mortgagor, or in the event such
original
title policy is unavailable, a written commitment or uniform binder
or
preliminary
report of title issued by the title insurance or escrow
company.
With respect to a maximum of approximately 1.0% of the
Mortgage Loans, by outstanding principal
balance of the Mortgage Loans as of the
Cut-off Date, if any original Mortgage Note
referred to in Section 2.01(i) above
cannot be located, the obligations of the
Depositor to deliver such documents
shall be deemed to be satisfied upon
delivery to the Trust Administrator, the
Trustee or the Custodian, as applicable, of
a photocopy of such Mortgage Note,
if available, with a lost note affidavit
substantially in the form of Exhibit I
attached hereto. If any of the original
Mortgage Notes for which a lost note
affidavit was delivered to the Trust
Administrator, the Trustee or the Custodian
with respect to the related Mortgage Files,
is subsequently located, such
original Mortgage Note shall be delivered
to the Trust Administrator, the
Trustee or the Custodian, as applicable,
within three Business Days.
Except with respect to any Mortgage Loan for which MERS is
identified on the Mortgage or on a properly
recorded assignment of the Mortgage
as the mortgagee of record, the Trust
Administrator, the Trustee or the
Custodian, as applicable, shall promptly
(within sixty Business Days following
the later of the Closing Date and the date
of receipt by the such party of the
recording information for a Mortgage, but
in no event later than ninety days
following the Closing Date) enforce the
obligations of the related Originator or
the Seller pursuant to the terms of the
related Master Agreements or the
Mortgage Loan Purchase Agreement to submit
or cause to be submitted for
recording, at no expense to the Trust Fund,
the Trust Administrator, the
Trustee, the Custodian or the Depositor, in
the appropriate public office for
real property records, each Assignment
referred to in Sections 2.01(iii) and
(iv) above and in connection therewith, the
Trustee shall enforce the obligation
of the related Originator or the Seller
pursuant to the terms of the related
Master Agreement or the Mortgage Loan
Purchase Agreement to execute each
original Assignment in the following form:
"U.S. Bank National Association, as
Trustee under the applicable agreement." In
the event that any such Assignment
is lost or returned unrecorded because of a
defect therein, the Trustee shall
enforce the obligation of the related
Originator or the Seller pursuant to the
Master Agreement or the Mortgage Loan
Purchase Agreement to promptly prepare or
cause to be prepared a substitute
Assignment or cure or cause to be cured such
defect, as the case may be, and thereafter
cause each such Assignment to be duly
recorded.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the
Depositor further agrees that it will
cause, within 30 Business Days after the
Closing Date, the MERS(R) System to
indicate that such Mortgage Loans have been
assigned by the Depositor to the
Trustee in accordance with this Agreement
for the benefit of the
Certificateholders by including (or
deleting, in the case of Mortgage Loans
which are repurchased in accordance with
this Agreement) in such computer files
(a) the code in the field which identifies
the specific Trustee and (b) the code
in the field "Pool Field" which identifies
the series of the Certificates issued
in connection with such Mortgage Loans. The
Depositor further agrees that it
will not, and will not permit the Master
Servicer to, and the Master Servicer
agrees that it will not, alter the codes
referenced in this paragraph with
respect to any Mortgage Loan during the
term of this Agreement.
If any of the documents referred to in Sections 2.01(ii),
(iii) or (iv) has, as of the Closing Date,
been submitted for recording but
either (x) has not been returned from the
applicable public recording office or
(y) has been lost or such public recording
office has retained the original of
such document, the obligations of the
Depositor to deliver such documents shall
be deemed to be satisfied upon (1) delivery
to the Trust Administrator, the
Trustee or the Custodian, as applicable, of
a copy of each such document
certified by the related Originator or the
Seller in the case of (x) above or
the applicable public recording office in
the case of (y) above to be a true and
complete copy of the original that was
submitted for recording and (2) if such
copy is certified by the applicable
Originator or the Seller, delivery to the
Trust Administrator, the Trustee or the
Custodian, as applicable, promptly upon
receipt thereof of either the original or a
copy of such document certified by
the applicable public recording office to
be a true and complete copy of the
original. Pursuant to the Mortgage Loan
Purchase Agreement, notice shall be
provided to the Trust Administrator and the
Rating Agencies by the related
Originator or the Seller if delivery
pursuant to clause (2) above will be made
more than 180 days after the Closing
Date.
If the original lender's title insurance policy was not
delivered pursuant to Section 2.01(vi)
above, the Depositor shall deliver or
cause to be delivered to the Trust
Administrator, the Trustee or the Custodian,
as applicable, promptly after receipt
thereof, the original lender's title
insurance policy. The Depositor shall
deliver or cause to be delivered to the
Trust Administrator, the Trustee or the
Custodian, as applicable, promptly upon
receipt thereof any other original
documents constituting a part of a Mortgage
File received with respect to any Mortgage
Loan, including, but not limited to,
any original documents evidencing an
assumption or modification of any Mortgage
Loan.
All original documents relating to the Mortgage Loans that are
not delivered to the Trust Administrator,
the Trustee or the Custodian, as
applicable, are and shall be held by or on
behalf of the related Originator, the
Seller, the Depositor, the related Servicer
or the Master Servicer, as the case
may be, in trust for the benefit of the
Trustee on behalf of the
Certificateholders. In the event that any
such original document is required
pursuant to the terms of this Section 2.01
to be a part of a Mortgage File, such
document shall be delivered promptly to the
Trust Administrator, the Trustee or
the Custodian, as applicable. Any such
original document delivered to or held by
the Depositor that is not required pursuant
to the terms of this Section to be a
part of a Mortgage File, shall be delivered
promptly to the related Servicer.
The Depositor and the Trustee hereto understand and agree that
it is not intended that any Mortgage Loan
be included in the Trust that is a
"High-Cost Home Loan" as defined by the
Homeownership and Equity Protection Act
of 1994 or any other applicable predatory
or abusive lending laws.
SECTION 2.02. Acceptance of REMIC I by Trustee.
The Trust Administrator, the Trustee and the Custodian
acknowledge receipt, subject to the
provisions of Section 2.01 and subject to
any exceptions noted on the exception
report described in the next paragraph
below, the documents referred to in Section
2.01 with respect to the related
Mortgage Loans (other than such documents
described in Section 2.01(v)) above
and all other assets included in the
definition of "REMIC I" under clauses (i),
(iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution
Account) and declares that it holds and
will hold such documents and the other
documents delivered to it constituting a
Mortgage File, and that it holds or
will hold all such assets and such other
assets included in the definition of
"REMIC I" in trust for the exclusive use
and benefit of all present and future
Certificateholders.
The Trust Administrator and the Trustee each agree to execute
and deliver with respect to the related
Mortgage Files, and the Trustee agrees
to cause the Custodian to execute and
deliver (in the form attached to the
Custodial Agreement), to the Depositor and
the NIMS Insurer on or prior to the
Closing Date, an acknowledgment of receipt
of the original Mortgage Note (with
any exceptions noted), substantially in the
form attached as Exhibit C-3 hereto.
The Trust Administrator, the Trustee and the Custodian each
agree, for the benefit of the
Certificateholders and the NIMS Insurer, to review
the Mortgage Files held by such party and,
within 45 days of the Closing Date
and to certify in substantially the form
attached hereto as Exhibit C-1 (or
cause the Custodian with respect to the
Deutsche Bank Files to certify in the
form of the Initial Certification attached
to the Custodial Agreement) that, as
to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage
Loan specifically identified in the
exception report annexed thereto as not
being covered by such certification),
(i) all documents constituting part of such
Mortgage File (other than such
documents described in Section 2.01(v))
required to be delivered to it pursuant
to this Agreement are in its possession,
(ii) such documents have been reviewed
by it and appear regular on their face and
relate to such Mortgage Loan and
(iii) based on its examination and only as
to the foregoing, the information set
forth in the Mortgage Loan Schedule that
corresponds to items (i), (iii), (x),
(xi), (xii), (xv) and (xviii) of the
definition of "Mortgage Loan Schedule"
accurately reflects information set forth
in the Mortgage File. It is herein
acknowledged that, in conducting such
review, the Trust Administrator, the
Trustee or the Custodian, as applicable, is
under no duty or obligation (i) to
inspect, review or examine any such
documents, instruments, certificates or
other papers to determine whether they are
genuine, enforceable, or appropriate
for the represented purpose or whether they
have actually been recorded or that
they are other than what they purport to be
on their face or (ii) to determine
whether any Mortgage File should include
any of the documents specified in
clause (v) of Section 2.01.
Prior to the first anniversary date of this Agreement the
Trust Administrator, the Trustee and the
Custodian shall deliver to the
Depositor, the NIMS Insurer, the Trustee,
the Servicers and the Master Servicer
a final certification with respect to the
related Mortgage Files, in the form
annexed hereto as Exhibit C-2 (or, with
respect to the Custodian, in the form
attached to the Custodial Agreement)
evidencing the completeness of such
Mortgage Files, with any applicable
exceptions noted thereon.
If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the
certifications referred to above, the
Trust Administrator, the Trustee or the
Custodian finds any document or
documents constituting a part of a Mortgage
File to be missing or defective in
any material respect, at the conclusion of
its review, such party shall so
notify the Depositor, the NIMS Insurer, the
Trustee, the Servicers and the
Master Servicer. In addition, upon the
discovery by the Depositor, the NIMS
Insurer, the Servicers, the Master Servicer
or the Trustee of a breach of any of
the representations and warranties made by
an Originator or the Seller in the
Master Agreements or the Mortgage Loan
Purchase Agreement, as applicable, in
respect of any Mortgage Loan which
materially adversely affects such Mortgage
Loan or the interests of the related
Certificateholders in such Mortgage Loan,
the party discovering such breach shall
give prompt written notice to the other
parties.
The Trust Administrator, the Trustee or the Custodian, as
applicable shall, at the written request
and expense of any Certificateholder,
provide a written report to such
Certificateholder of all related Mortgage Files
released to the Servicers for servicing
purposes.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a
sale of the Mortgage Loans, the
related Mortgage Notes and the related
documents, conveying good title thereto
free and clear of any liens and
encumbrances, from the Depositor to the Trustee
in trust for the benefit of the
Certificateholders and that such property not be
part of the Depositor's estate or property
of the Depositor in the event of any
insolvency by the Depositor. In the event
that such conveyance is deemed to be,
or to be made as security for, a loan, the
parties intend that the Depositor
shall be deemed to have granted and does
hereby grant to the Trustee a first
priority perfected security interest in all
of the Depositor's right, title and
interest in and to the Mortgage Loans, the
related Mortgage Notes and the
related documents, and that this Agreement
shall constitute a security agreement
under applicable law.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by
an Originator or the Seller.
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document
is missing from, a Mortgage File or of
the breach by an Originator or the Seller
of any representation, warranty or
covenant under the Master Agreements, the
Originator Assignment Agreements or
the Mortgage Loan Purchase Agreement, as
applicable, (including any
representation, warranty or covenant
regarding the Prepayment Charge Schedule)
in respect of any Mortgage Loan that
materially adversely affects the value of
such Mortgage Loan or the interest therein
of the Certificateholders, the Trust
Administrator or the Trustee (who shall
have received notice from the
Custodian), as applicable, shall promptly
notify the related Originator, the
NIMS Insurer, the Seller, the Servicers and
the Master Servicer of such defect,
missing document or breach and request that
the related Originator or the
Seller, as applicable, deliver such missing
document or cure such defect or
breach within 90 days from the date such
Originator or the Seller, as
applicable, was notified of such missing
document, defect or breach, and if the
related Originator or the Seller, as
applicable, does not deliver such missing
document or cure such defect or breach in
all material respects during such
period, the Trustee shall enforce the
obligations of the related Originator or
the Seller, as applicable, under the
related Maser Agreement, the related
Originator Assignment Agreement or the
Mortgage Loan Purchase Agreement, as
applicable, to repurchase such Mortgage
Loan from REMIC I at the Purchase Price
within 90 days after the date on which the
related Originator or the Seller, as
applicable, was notified (subject to
Section 2.03(c)) of such missing document,
defect or breach, if and to the extent that
the related Originator or the
Seller, as applicable, is obligated to do
so under the related Master Agreement,
the related Originator Assignment Agreement
or the Mortgage Loan Purchase
Agreement, as applicable. The Purchase
Price for the repurchased Mortgage Loan
shall be remitted to the Master Servicer
for deposit into the Distribution
Account and the Trust Administrator, the
Trustee or the Custodian, as
applicable, upon receipt of written notice
from the Master Servicer of such
deposit, shall release to the related
Originator or the Seller, as applicable,
the related Mortgage File and such party
shall execute and deliver such
instruments of transfer or assignment, in
each case without recourse, as the
related Originator or the Seller, as
applicable, shall furnish to it and as
shall be necessary to vest in the related
Originator or the Seller, as
applicable, any Mortgage Loan released
pursuant hereto. In furtherance of the
foregoing, if the related Originator or the
Seller, as applicable, is not a
member of MERS and repurchases a Mortgage
Loan which is registered on the
MERS(R) System, the related Originator or
the Seller, as applicable, at its own
expense and without any right of
reimbursement, shall cause MERS to execute and
deliver an assignment of the Mortgage in
recordable form to transfer the
Mortgage from MERS to the related
Originator or the Seller, as applicable, and
shall cause such Mortgage to be removed
from registration on the MERS(R) System
in accordance with MERS' rules and
regulations. The Trust Administrator, the
Trustee or the Custodian, as applicable,
shall not have any further
responsibility with regard to such Mortgage
File. In lieu of repurchasing any
such Mortgage Loan as provided above, if so
provided in the related Master
Agreement or the Mortgage Loan Purchase
Agreement, the related Originator or the
Seller, as applicable, may cause such
Mortgage Loan to be removed from REMIC I
(in which case it shall become a Deleted
Mortgage Loan) and substitute one or
more Qualified Substitute Mortgage Loans in
the manner and subject to the
limitations set forth in Section 2.03(b);
provided, however, the related
Originator or the Seller, as applicable,
may not substitute a Qualified
Substitute Mortgage Loan for any Deleted
Mortgage Loan that violates any
predatory or abusive lending law. It is
understood and agreed that the
obligation of an Originator or the Seller,
as applicable, to cure or to
repurchase (or to substitute for) any
Mortgage Loan as to which a document is
missing, a material defect in a constituent
document exists or as to which such
a breach has occurred and is continuing
shall constitute the sole remedy
respecting such omission, defect or breach
available to the Trustee and the
Certificateholders.
(b) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to
Section 2.03(a) must be effected
prior to the date which is two years after
the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which an Originator or the
Seller, as applicable, substitutes a
Qualified Substitute Mortgage Loan or
Loans, such substitution shall be effected
by the related Originator or the
Seller, as applicable, delivering to the
Trust Administrator, the Trustee or the
Custodian, as applicable, for such
Qualified Substitute Mortgage Loan or Loans,
the Mortgage Note, the Mortgage, the
Assignment in blank or to the Trustee, and
such other documents and agreements, with
all necessary endorsements thereon, as
are required by Section 2.01, together with
an Officers' Certificate providing
that each such Qualified Substitute
Mortgage Loan satisfies the definition
thereof and specifying the Substitution
Adjustment Amount (as described below),
if any, in connection with such
substitution. The Trust Administrator, the
Trustee or the Custodian, as applicable,
shall acknowledge receipt for such
Qualified Substitute Mortgage Loan or Loans
and, within ten Business Days
thereafter, review such documents as
specified in Section 2.02 and deliver to
the Depositor, the NIMS Insurer, the
Servicers and the Master Servicer, with
respect to such Qualified Substitute
Mortgage Loan or Loans, a certification
substantially in the form attached hereto
as Exhibit C-1, with any applicable
exceptions noted thereon. Within one year
of the date of substitution, the Trust
Administrator, the Trustee or the
Custodian, as applicable, shall deliver to the
Depositor, the NIMS Insurer, the Servicers
and the Master Servicer a
certification substantially in the form of
Exhibit C-2 hereto with respect to
such Qualified Substitute Mortgage Loan or
Loans, with any applicable exceptions
noted thereon. Monthly Payments due with
respect to Qualified Substitute
Mortgage Loans in the month of substitution
are not part of REMIC I and will be
retained by the related Originator or the
Seller, as applicable. For the month
of substitution, distributions to
Certificateholders will reflect the Monthly
Payment due on such Deleted Mortgage Loan
on or before the Due Date in the month
of substitution, and the related Originator
or the Seller, as applicable, shall
thereafter be entitled to retain all
amounts subsequently received in respect of
such Deleted Mortgage Loan. The Depositor
shall give or cause to be given
written notice to the Certificateholders
and the NIMS Insurer that such
substitution has taken place, shall amend
the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan
from the terms of this Agreement and
the substitution of the Qualified
Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage
Loan Schedule to the Master Servicer,
the Trust Administrator, the Custodian, the
related Servicer and the NIMS
Insurer. Upon such substitution, such
Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Mortgage
Pool and shall be subject in all
respects to the terms of this Agreement and
the related Master Agreement, the
related Originator Assignment Agreement or
the Mortgage Loan Purchase Agreement,
as applicable, including, all applicable
representations and warranties thereof
included in the related Master Agreement,
the related Originator Assignment
Agreement or Mortgage Loan Purchase
Agreement, as applicable.
For any month in which an Originator or the Seller, as
applicable, substitutes one or more
Qualified Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, the Master
Servicer will monitor the obligation
of the related Servicer, to the extent
provided in the related Servicing
Agreement, to determine the amount (the
"Substitution Adjustment Amount"), if
any, by which the aggregate Purchase Price
of all such Deleted Mortgage Loans
exceeds the aggregate of, as to each such
Qualified Substitute Mortgage Loan,
the Stated Principal Balance thereof as of
the date of substitution, together
with one month's interest on such Stated
Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding
Advances and Servicing Advances (including
Nonrecoverable Advances and Nonrecoverable
Servicing Advances) related thereto.
If the related Servicing Agreement does not
require the related Servicer to
determine the Substitution Adjustment
Amount, the Master Servicer, based on
information provided to it by the related
Servicer, shall determine the
Substitution Adjustment Amount. Upon
receipt of the related Servicer's
determination of the Substitution
Adjustment Amount or upon determination by the
Master Servicer of the Substitution
Adjustment Amount, the Master Servicer shall
give prompt written notice thereof to the
Trust Administrator. On the date of
such substitution, the related Originator
or the Seller, as applicable, will
deliver or cause to be delivered to the
Master Servicer for deposit in the
Distribution Account an amount equal to the
Substitution Adjustment Amount, if
any, and the Trust Administrator, the
Trustee or the Custodian, as applicable,
upon receipt of the related Qualified
Substitute Mortgage Loan or Loans and
written notice by the Master Servicer of
such deposit, shall release to the
related Originator or the Seller, as
applicable, the related Mortgage File or
Files and such party shall execute and
deliver such instruments of transfer or
assignment, in each case without recourse,
the related Originator or the Seller,
as applicable, shall deliver to it and as
shall be necessary to vest therein any
Deleted Mortgage Loan released pursuant
hereto.
In addition, the related Originator or the Seller, as
applicable, shall obtain at its own expense
and deliver to the Trustee, the
Trust Administrator and the NIMS Insurer an
Opinion of Counsel to the effect
that such substitution will not cause (a)
any federal tax to be imposed on any
Trust REMIC, including without limitation,
any federal tax imposed on
"prohibited transactions" under Section
860F(a)(1) of the Code or on
"contributions after the startup date"
under Section 860G(d)(1) of the Code, or
(b) any Trust REMIC to fail to qualify as a
REMIC at any time that any
Certificate is outstanding.
(c) Upon discovery by the Depositor, the NIMS Insurer, an
Originator, the Seller, the Master
Servicer, the Trust Administrator or the
Trustee that any Mortgage Loan does not
constitute a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the
Code, the party discovering such fact
shall within two Business Days give written
notice thereof to the other parties
hereto and the Trustee shall give written
notice to the related Originator and
the Seller. In connection therewith, the
related Originator, the Seller or the
Depositor shall repurchase or, subject to
the limitations set forth in Section
2.03(b), substitute one or more Qualified
Substitute Mortgage Loans for the
affected Mortgage Loan within 90 days of
the earlier of discovery or receipt of
such notice with respect to such affected
Mortgage Loan. Such repurchase or
substitution shall be made by (i) the
related Originator or the Seller, as the
case may be, if the affected Mortgage
Loan's status as a non-qualified mortgage
is or results from a breach of any
representation, warranty or covenant made by
such Originator or the Seller, as the case
may be, under the related Master
Agreement or the Mortgage Loan Purchase
Agreement, as applicable, or (ii) the
Depositor, if the affected Mortgage Loan's
status as a non-qualified mortgage is
a breach of no representation or warranty.
Any such repurchase or substitution
shall be made in the same manner as set
forth in Section 2.03(a). The Trust
Administrator, the Trustee or the
Custodian, as applicable, shall reconvey to
the Depositor, the related Originator or
the Seller, as the case may be, the
Mortgage Loan to be released pursuant
hereto in the same manner, and on the same
terms and conditions, as it would a
Mortgage Loan repurchased for breach of a
representation or warranty.
SECTION 2.04. Reserved.
SECTION 2.05. Representations, Warranties and Covenants of the
Master Servicer.
The Master Servicer hereby represents, warrants and covenants
to the Trustee, for the benefit of each of
the Trustee and the
Certificateholders, and to the Depositor
that as of the Closing Date or as of
such date specifically provided herein:
(1) The Master Servicer is a national banking association duly
formed, validly existing and in good standing under the laws of
the
United States of America and is duly authorized and qualified
to
transact any and all business contemplated by this Agreement to
be
conducted by the Master Servicer;
(2) The Master Servicer has the full power and authority to
conduct its business as presently conducted by it and to
execute,
deliver and perform, and to enter into and consummate, all
transactions
contemplated by this Agreement. The Master Servicer has duly
authorized
the execution, delivery and performance of this Agreement, has
duly
executed and delivered this Agreement, and this Agreement, assuming
due
authorization, execution and delivery by the Depositor and the
Trustee,
constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms
except as
the enforceability thereof may be limited by bankruptcy,
insolvency,
reorganization or similar laws affecting the enforcement of
creditors'
rights generally and by general principles of equity;
(3) The execution and delivery of this Agreement by the Master
Servicer, the consummation by the Master Servicer of any other of
the
transactions herein contemplated, and the fulfillment of or
compliance
with the terms hereof are in the ordinary course of business of
the
Master Servicer and will not (A) result in a breach of any term
or
provision of charter and by-laws of the Master Servicer or (B)
conflict
with, result in a breach, violation or acceleration of, or result
in a
default under, the terms of any other material agreement or
instrument
to which the Master Servicer is a party or by which it may be
bound, or
any statute, order or regulation applicable to the Master Servicer
of
any court, regulatory body, administrative agency or governmental
body
having jurisdiction over the Master Servicer; and the Master
Servicer
is not a party to, bound by, or in breach or violation of any
indenture
or other agreement or instrument, or subject to or in violation of
any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
it,
which materially and adversely affects or, to the Master
Servicer's
knowledge, would in the future materially and adversely affect,
the
ability of the Master Servicer to perform its obligations under
this
Agreement;
(4) The Master Servicer or an Affiliate thereof is an approved
seller/servicer for Fannie Mae or Freddie Mac in good standing and
is a
HUD approved mortgagee pursuant to Section 203 of the National
Housing
Act;
(5) The Master Servicer does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and
every
covenant made by it and contained in this Agreement;
(6) No litigation is pending against the Master Servicer that
would materially and adversely affect the execution, delivery
or
enforceability of this Agreement or the ability of the Master
Servicer
to perform any of its other obligations hereunder in accordance
with
the terms hereof,
(7) There are no actions or proceedings against, or
investigations known to it of, the Master Servicer before any
court,
administrative or other tribunal (A) that might prohibit its
entering
into this Agreement, (B) seeking to prevent the consummation of
the
transactions contemplated by this Agreement or (C) that might
prohibit
or materially and adversely affect the performance by the
Master
Servicer of its obligations under, or validity or enforceability
of,
this Agreement; and
(8) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery
and performance by the Master Servicer of, or compliance by the
Master
Servicer with, this Agreement or the consummation of the
transactions
contemplated by this Agreement, except for such consents,
approvals,
authorizations or orders, if any, that have been obtained prior to
the
Closing Date.
It is understood and agreed that the representations,
warranties and covenants set forth in this
Section 2.05 shall survive delivery
of the Mortgage Files to the Trust
Administrator, the Trustee or the Custodian,
as applicable and shall inure to the
benefit of the Trustee, the Depositor and
the Certificateholders. Upon discovery by
any of the Depositor, the Master
Servicer, the NIMS Insurer or the Trustee
of a breach of any of the foregoing
representations, warranties and covenants
which materially and adversely affects
the value of any Mortgage Loan or the
interests therein of the
Certificateholders, the party discovering
such breach shall give prompt written
notice (but in no event later than two
Business Days following such discovery)
to other parties to this Agreement.
SECTION 2.06. Conveyance of REMIC Regular Interests and
Acceptance of REMIC I, REMIC II, REMIC III and
REMIC IV by the Trustee; Issuance of
Certificates.
(a) 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 assets described in
the definition of REMIC I for the
benefit of the holders of the REMIC I
Regular Interests (which are
uncertificated) and the Class R
Certificates (in respect of the Class R-I
Interest). The Trustee acknowledges receipt
of the assets described in the
definition of REMIC I and declares that it
holds and will hold the same in trust
for the exclusive use and benefit of the
holders of the REMIC I Regular
Interests and the Class R Certificates (in
respect of the Class R-I Interest).
The interests evidenced by the Class R-I
Interest, together with the REMIC I
Regular Interests, constitute the entire
beneficial ownership interest in REMIC
I.
(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 (which are uncertificated) for
the benefit of the Holders of the REMIC II
Regular Interests and the Class R
Certificates (in respect of the Class R-II
Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests
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 Regular Interests and the Class R
Certificates (in respect of the Class
R-II Interest). The interests evidenced by
the Class R-II Interest, together
with the Regular Certificates (other than
the Class CE Certificates and the
Class P Certificates), the Class CE
Interest and the Class P Interest,
constitute the entire beneficial ownership
interest in REMIC II.
(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 Class CE Interest
(which is uncertificated) for the
benefit of the Holders of the Class CE
Certificates and the Class R-X
Certificates (in respect of the Class R-III
Interest). The Trustee acknowledges
receipt of the Class CE Interest and
declares that it holds and will hold the
same in trust for the exclusive use and
benefit of the Holders of the Class CE
Certificates and the Class R-X Certificates
(in respect of the Class R-III
Interest). The interests evidenced by the
Class R-III Interest, together with
the Class CE Certificates, constitute the
entire beneficial ownership interest
in REMIC III.
(d) 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 Class P Interest
(which is uncertificated) for the
benefit of the Holders of the Class P
Certificates and the Class R-X
Certificates (in respect of the Class R-IV
Interest). The Trustee acknowledges
receipt of the Class P Interest and
declares that it holds and will hold the
same in trust for the exclusive use and
benefit of the Holders of the Class P
Certificates and the Class R-X Certificates
(in respect of the Class R-IV
Interest). The interests evidenced by the
Class R-IV Interest, together with the
Class P Certificates, constitute the entire
beneficial ownership interest in
REMIC IV.
SECTION 2.07. Issuance of Class R Certificates and Class R-X
Certificates.
(a) The Trustee acknowledges the assignment to it of the REMIC
I Regular Interests and, concurrently
therewith and in exchange therefor,
pursuant to the written request of the
Depositor executed by an officer of the
Depositor, the Trust Administrator has
executed, authenticated and delivered to
or upon the order of the Depositor, the
Class R Certificates in authorized
denominations. The interests evidenced by
the Class R Certificates, together
with the REMIC II Certificates, constitute
the entire beneficial ownership
interest in REMIC II.
(b) The Trustee acknowledges the assignment to it of the Class
CE Interest and the Class P Interest and,
concurrently therewith and in exchange
therefor, pursuant to the written request
of the Depositor executed by an
officer of the Depositor, the Trust
Administrator has executed, authenticated
and delivered to or upon the order of the
Depositor, the Class R-X Certificates
in authorized denominations. The interests
evidenced by the Class R-X
Certificates, together with the Class CE
Certificates and the Class P
Certificates constitute the entire
beneficial ownership interest in REMIC III
and REMIC IV.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer
The Master Servicer shall supervise, monitor and oversee the
obligation of the Servicers to service and
administer the Mortgage Loans in
accordance with the terms of the related
Servicing Agreement 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 the
Servicers 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 the Servicers and
shall cause the Servicers to perform
and observe the covenants, obligations and
conditions to be performed or
observed by each Servicer under its
Servicing Agreement. The Master Servicer
shall independently monitor the related
Servicer's servicing activities with
respect to each 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 each
Servicer's and Master Servicer's
records, and based on such reconciled and
corrected information, the Master<
