<PAGE>
Exhibit 4.1
================================================================================
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
WELLS FARGO BANK, N.A.
Master Servicer and Securities Administrator
LITTON LOAN SERVICING LP,
Servicer
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
-------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
--------------------------------
OWNIT MORTGAGE LOAN TRUST,
MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005-3
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S>
<C>
<C>
ARTICLE I
DEFINITIONS.............................................................................
2
ARTICLE II CONVEYANCE OF
MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES............................ 44
SECTION 2.01. Conveyance of Mortgage
Loans........................................... 44
Section 2.02. Acceptance by the
Trustee of the Mortgage Loans........................ 47
Section 2.03. Representations,
Warranties and Covenants of the Depositor............. 49
Section 2.04. Representations and
Warranties of the Master Servicer;
Representations and Warranties of the Servicer; Representations
and Warranties of the Securities
Administrator......................... 53
Section 2.05. Substitutions and
Repurchases of Mortgage Loans that are not
"Qualified
Mortgages.".................................................
56
Section 2.06. Authentication and
Delivery of Certificates............................ 57
Section 2.07. REMIC
Elections........................................................
57
Section 2.08.
[RESERVED]............................................................
63
Section 2.09. Covenants of the
Servicer.............................................. 63
Section 2.10.
[RESERVED].............................................................
63
Section 2.11. Permitted Activities
of the Trust...................................... 63
Section
2.12.
Qualifying Special Purpose
Entity...................................... 63
ARTICLE III ADMINISTRATION AND
SERVICING OF MORTGAGE
LOANS.......................................... 63
Section 3.01. Servicer to Service
Mortgage Loans..................................... 63
Section 3.02. Servicing and
Subservicing; Enforcement of the Obligations of
Servicer...............................................................
65
Section 3.03. Rights of the
Depositor, the Securities Administrator and the
Trustee in Respect of the
Servicer..................................... 66
Section 3.04. Master Servicer to Act
as Servicer..................................... 66
Section 3.05. Collection of Mortgage
Loan Payments; Collection Account;
Certificate
Account....................................................
67
Section 3.06. Collection of Taxes,
Assessments and Similar Items; Escrow
Accounts...............................................................
71
Section 3.07. Access to Certain
Documentation and Information Regarding the
Mortgage
Loans.........................................................
71
Section 3.08. Permitted Withdrawals
from the Collection Account and
Certificate
Account....................................................
71
Section 3.09.
[RESERVED].............................................................
74
Section 3.10. Maintenance of Hazard
Insurance........................................ 74
Section 3.11. Enforcement of
Due-On-Sale Clauses; Assumption Agreements..............
75
Section 3.12. Realization Upon
Defaulted Mortgage Loans; Determination of
Excess
Proceeds........................................................
76
Section 3.13. Trustee to Cooperate;
Release of Mortgage Files........................ 79
Section 3.14. Documents, Records and
Funds in Possession of Servicer to be
Held for the
Trustee...................................................
81
Section 3.15. Servicing
Compensation.................................................
81
</TABLE>
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S>
<C>
<C>
Section 3.16. Access to Certain
Documentation........................................ 81
Section 3.17. Annual Statement as to
Compliance...................................... 82
Section 3.18. Annual Independent
Public Accountants' Servicing Statement;
Financial
Statements...................................................
82
Section 3.19. Rights of the NIMs
Insurer............................................. 82
Section 3.20.
[RESERVED].............................................................
82
Section 3.21. Annual Certificate by
Securities Administrator......................... 82
Section 3.22. Annual Certificate by
Servicer......................................... 83
Section 3.23. Prepayment Charge
Reporting Requirements............................... 84
Section 3.24. Statements to
Securities Administrator.................................
84
Section 3.25.
Indemnification........................................................
84
Section 3.26.
Nonsolicitation........................................................
86
ARTICLE IV
DISTRIBUTIONS...........................................................................
86
Section 4.01.
Advances...............................................................
86
Section 4.02. Reduction of Servicing
Compensation in Connection with
Prepayment Interest
Shortfalls......................................... 87
Section 4.03. Distributions on the
REMIC Interests................................... 87
Section 4.04.
Distributions..........................................................
87
Section
4.05.
Monthly Statements to
Certificateholders............................... 93
ARTICLE V THE
CERTIFICATES........................................................................
96
Section 5.01. The
Certificates.......................................................
96
Section 5.02. Certificate Register;
Registration of Transfer and Exchange of
Certificates...........................................................
97
Section 5.03. Mutilated, Destroyed,
Lost or Stolen Certificates...................... 101
Section 5.04. Persons Deemed
Owners..................................................
102
Section 5.05. Access to List of
Certificateholders' Names and Addresses.............. 102
Section 5.06. Book-Entry
Certificates................................................
102
Section 5.07. Notices to
Depository..................................................
103
Section 5.08. Definitive
Certificates................................................
103
Section 5.09. Maintenance of Office
or Agency........................................ 104
ARTICLE VI THE DEPOSITOR,
THE MASTER SERVICER, THE SERVICER AND THE SECURITIES
ADMINISTRATOR.......
104
Section 6.01. Respective Liabilities
of the Depositor, the Master Servicer,
the Servicer and the Securities
Administrator.......................... 104
Section 6.02. Merger or
Consolidation of the Depositor, the Master Servicer,
the Servicer or the Securities
Administrator........................... 104
Section 6.03. Limitation on
Liability of the Depositor, the Securities
Administrator, the Master Servicer, the Servicer and
Others............
104
Section 6.04. Limitation on
Resignation of Servicer..................................
105
Section 6.05. Errors and Omissions
Insurance; Fidelity Bonds......................... 106
Section 6.06. Limitation on
Resignation of the Master Servicer.......................
106
Section 6.07. Assignment of Master
Servicing......................................... 107
</TABLE>
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S>
<C>
<C>
ARTICLE VII DEFAULT; TERMINATION
OF SERVICER........................................................
107
Section 7.01. Events of
Default......................................................
107
Section 7.02. Servicer Trigger
Event................................................. 109
Section 7.03. Master Servicer to
Act; Appointment of Successor....................... 110
Section 7.04. Notification to
Certificateholders.....................................
111
ARTICLE VIII CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR.................................
111
Section 8.01. Duties of the Trustee
and the Securities Administrator................. 111
Section 8.02.
Certain Matters
Affecting the Trustee and the Securities
Administrator..........................................................
113
Section 8.03. Trustee and Securities
Administrator Not Liable for Certificates
or Mortgage
Loans......................................................
114
Section 8.04. Trustee and Securities
Administrator May Own Certificates.............. 114
Section 8.05. Trustee's Fees and
Expenses............................................ 114
Section 8.06. Indemnification and
Expenses of Trustee................................ 115
Section 8.07. Eligibility
Requirements for Trustee...................................
116
Section 8.08. Resignation and
Removal of Trustee.....................................
116
Section 8.09. Successor
Trustee......................................................
117
Section 8.10. Merger or
Consolidation of Trustee.....................................
117
Section 8.11. Appointment of
Co-Trustee or Separate Trustee..........................
117
Section 8.12. Tax
Matters............................................................
118
ARTICLE IX
TERMINATION.............................................................................
121
Section 9.01. Termination upon
Liquidation or Auction of all Mortgage Loans.......... 121
Section 9.02. Final Distribution on
the Certificates................................. 121
Section 9.03. Additional Termination
Requirements.................................... 122
ARTICLE X
MISCELLANEOUS
PROVISIONS................................................................
123
Section 10.01.
Amendment..............................................................
123
Section 10.02.
Counterparts...........................................................
125
Section 10.03.
Governing
Law..........................................................
125
Section 10.04.
Intention of
Parties...................................................
125
Section 10.05.
Notices................................................................
125
Section 10.06.
Severability of
Provisions.............................................
126
Section 10.07.
Assignment.............................................................
126
Section 10.08.
Limitation on Rights of
Certificateholders............................. 127
Section 10.09.
Inspection and Audit
Rights............................................ 127
Section 10.10.
Certificates Nonassessable and Fully
Paid.............................. 128
Section 10.11.
Third Party
Rights.....................................................
128
Section 10.12.
Additional Rights of the NIMs
Insurer.................................. 128
Section 10.13.
Assignment; Sales; Advance
Facilities.................................. 128
</TABLE>
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S>
<C>
<C>
ARTICLE XI ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE
LOANS............................... 131
Section 11.01.
Master
Servicer........................................................
131
Section 11.02.
Monitoring of
Servicer.................................................
132
Section 11.03.
Fidelity
Bond..........................................................
132
Section 11.04.
Power to Act;
Procedures...............................................
133
Section 11.05.
Documents, Records and Funds in Possession of Master Servicer
to
Be Held for
Trustee....................................................
133
Section 11.06.
Trustee to Retain Possession of Certain Insurance Policies and
Documents..............................................................
134
Section 11.07.
Compensation for the Master Servicer and the Securities
Administrator..........................................................
134
Section 11.08.
Annual Statement as to
Compliance...................................... 134
Section 11.09.
Periodic
Filings.......................................................
135
Section 11.10.
Obligation of the Master Servicer in Respect of Prepayment
Interest
Shortfalls....................................................
135
</TABLE>
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S>
<C>
<C>
EXHIBIT A FORMS OF
CERTIFICATES
EXHIBIT B-1 MORTGAGE LOAN SCHEDULE
- MORTGAGE POOL
EXHIBIT B-2 MORTGAGE LOAN SCHEDULE
- GROUP ONE MORTGAGE LOANS
EXHIBIT B-3 MORTGAGE LOAN SCHEDULE
- GROUP TWO MORTGAGE LOANS
EXHIBIT C
[RESERVED]
EXHIBIT D FORM OF
TRUSTEE CERTIFICATION
EXHIBIT E-1 FORM OF TRANSFEREE'S
LETTER AND AFFIDAVIT
EXHIBIT E-2 FORM OF TRANSFEROR'S
AFFIDAVIT
EXHIBIT F FORM OF
TRANSFEROR CERTIFICATE
EXHIBIT G FORM OF
INVESTMENT LETTER (ACCREDITED INVESTOR)
EXHIBIT H FORM OF
RULE 144A LETTER (QUALIFIED INSTITUTIONAL BUYER)
EXHIBIT I FORM OF
REQUEST FOR RELEASE
EXHIBIT J
[RESERVED]
EXHIBIT K FORM OF
OFFICER'S CERTIFICATE OF TRUSTEE
EXHIBIT L FORM OF
OFFICER'S CERTIFICATE OF SERVICER
EXHIBIT M-1 FORM OF DELINQUENCY
REPORT
EXHIBIT M-2 FORM OF MONTHLY
REMITTANCE ADVICE
EXHIBIT M-3 FORM OF REALIZED LOSS
REPORT
EXHIBIT N-1 FORM OF CLASS A-1 CAP
CONTRACT
EXHIBIT N-2 FORM OF CLASS A-2 CAP
CONTRACT
EXHIBIT N-3 FORM OF CLASS
A-3/SUBORDINATE CERTIFICATE CAP CONTRACT
EXHIBIT O-1 ONE-MONTH LIBOR CAP
TABLE - CLASS A-1 CAP CONTRACT
EXHIBIT O-2 ONE MONTH LIBOR CAP
TABLE - CLASS A-2 CAP CONTRACT
EXHIBIT O-3 ONE MONTH LIBOR CAP
TABLE - CLASS A-3/SUBORDINATE
CERTIFICATE CAP CONTRACT
EXHIBIT P FORM OF
POWER OF ATTORNEY
</TABLE>
<PAGE>
POOLING
AND SERVICING AGREEMENT (the "Agreement"), dated as of June 1,
2005, among MERRILL LYNCH MORTGAGE
INVESTORS, INC., a Delaware corporation, as
depositor (the "Depositor"), WELLS FARGO
BANK, N.A, a national banking
association, as master servicer (the
"Master Servicer") and securities
administrator (the "Securities
Administrator"), LITTON LOAN SERVICING LP, a
Delaware limited partnership, as servicer
(the "Servicer") and HSBC BANK USA,
NATIONAL ASSOCIATION, a national banking
association, as trustee (the
"Trustee").
The
Depositor is the owner of the Trust Fund that is hereby conveyed
to
the Trustee in return for the Certificates.
The Trust Fund for federal income
tax purposes will consist of (i) eight real
estate mortgage investment conduits,
(ii) the right to receive payments
distributable to the Class P Certificates
pursuant to Section 4.04(b)(i) hereof,
(iii) each Cap Contract and the Cap
Contract Account and (iv) the grantor
trusts described in Section 2.07 hereof.
The Lower Tier REMIC will consist of all of
the assets constituting the Trust
Fund (other than the assets described in
clauses (ii), (iii), and (iv) above,
the Lower Tier REMIC Regular Interests, the
Class UTM Interests, the Class UTB
Interests and the Class UTC Interest) and
will be evidenced by the Lower Tier
REMIC Regular Interests (which will be
uncertificated and will represent the
"regular interests" in the Lower Tier
REMIC) and the Class LTR Interest as the
single "residual interest" in the Lower
Tier REMIC. The Trustee will hold the
Lower Tier REMIC Regular Interests. The
Upper Tier REMIC will consist of the
Lower Tier REMIC Regular Interests and will
be evidenced by the REMIC Regular
Interests (which will represent the
"regular interests" in the Upper Tier REMIC)
and the Residual Interest as the single
"residual interest" in the Upper Tier
REMIC. The Trustee will hold the Class UTM
Interests, the Class UTB Interests
and the Class UTC Interest. The M2 REMIC
will consist of the Class UTM2 Interest
and will be evidenced by the Class M-2
Certificates (which will represent the
"regular interest" in the M2 REMIC) and the
Class M2R Interest as the single
"residual interest" in the M2 REMIC. The M3
REMIC will consist of the Class UTM3
Interest and will be evidenced by the Class
M-3 Certificates (which will
represent the "regular interest" in the M3
REMIC) and the Class M3R Interest as
the single "residual interest" in the M3
REMIC. The B1 REMIC will consist of the
Class UTB1 Interest and will be evidenced
by the Class B-1 Certificates (which
will represent the "regular interest" in
the B1 REMIC) and the Class B1R
Interest as the single "residual interest"
in the B1 REMIC. The B2 REMIC will
consist of the Class UTB2 Interest and will
be evidenced by the Class B-2
Certificates (which will represent the
"regular interest" in the B2 REMIC) and
the Class B2R Interest as the single
"residual interest" in the B2 REMIC. The B3
REMIC will consist of the Class UTB3
Interest and will be evidenced by the Class
B-3 Certificates (which will represent the
"regular interest" in the B3 REMIC)
and the Class B3R Interest as the single
"residual interest" in the B3 REMIC.
The C REMIC will consist of the Class UTC
Interest and will be evidenced by the
Uncertificated Class C Interest (which will
represent the "regular interest" in
the C REMIC) and the Class CR Interest as
the single "residual interest" in the
C REMIC. The Class R-X Certificate will
represent beneficial ownership of the
Class M2R Interest, the Class M3R interest,
the Class B1R Interest, the Class
B2R Interest, the Class B3R Interest and
the Class CR Interest. The Class R
Certificate will represent beneficial
ownership of the Class LTR Interest and
the Residual Interest. The "latest possible
maturity date" for federal income
tax purposes of all interests created
hereby will be the Latest Possible
Maturity Date.
All
covenants and agreements made by the Transferor in the Transfer
Agreement, by the Seller in the Sale
Agreement and by the Depositor and the
Trustee herein with respect to the Mortgage
Loans and the other property
constituting the Trust Fund are for the
benefit of the Holders from time to time
of the Certificates and, to the extent
provided herein, the NIMs Insurer.
In
consideration of the mutual agreements herein contained, the
Depositor,
the Master Servicer, the Securities
Administrator, the Servicer and the Trustee
hereby agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have
the following meanings:
Accepted
Master Servicing Practices: With respect to any Mortgage Loan,
as
applicable, either (x) those customary
mortgage master servicing practices of
prudent master 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 the Servicer), or (y) as
provided in Section 11.01 hereof, but in no
event below the standard set forth
in clause (x) of this definition.
Accepted
Servicing Practices: The Servicer's normal servicing practices,
which will conform to the mortgage
servicing practices of prudent mortgage
lending institutions that service for their
own account mortgage loans of the
same type as the Mortgages Loans in the
jurisdictions in which the related
Mortgaged Properties (or Underlying
Mortgaged Properties in the case of Co-op
Loans) are located.
Accrual
Period: With respect to each Class of Certificates and the
Lower
Tier REMIC Interests and any Distribution
Date, the period commencing on the
immediately preceding Distribution Date
(or, in the case of the first
Distribution Date, the Closing Date) and
ending on the day immediately preceding
such Distribution Date. All calculations of
interest on each Class of
Certificates and the Lower Tier REMIC
Interests will be made on the basis of the
actual number of days elapsed in the
related Accrual Period and a 360 day year.
Adjustable
Rate Mortgage Loan: A Mortgage Loan identified in the Mortgage
Loan Schedule as having a Mortgage Rate
that is adjustable.
Adjustment
Date: As to each Adjustable Rate Mortgage Loan, each date on
which the related Mortgage Rate is subject
to adjustment, as provided in the
related Mortgage Note.
Advance:
The aggregate of the advances required to be made by the
Servicer
with respect to any Distribution Date
pursuant to Section 4.01, the amount of
any such advances being equal to the sum of
the aggregate amount of all payments
of principal and interest (net of the
Servicing Fee) on the Mortgage Loans that
were due during the applicable Due Period
and not received as of the close of
business on the related Determination Date
(other than the principal portion of
any Balloon Amount), less the aggregate
amount of any such Delinquent payments
that the Servicer has determined would
constitute a Non-Recoverable Advance were
an advance to be made with respect thereto;
provided, however, that with respect
to any Mortgage Loan (x) that is a second
lien Mortgage Loan or (y) that has
been converted to an REO Property, the
obligation to make advances shall be
limited to payments of interest.
Advance
Facility: A financing or other facility as described in Section
10.13.
Advance
Facility Notice: As defined in Section 10.13(b).
Advance
Financing Person: As defined in Section 10.13(a).
Advance
Reimbursement Amount: As defined in Section 10.13(b).
-2-
<PAGE>
Affiliate:
With respect to any specified Person, any other Person
controlling, controlled by or under common
control with such Person. For the
purposes of this definition, "control"
means the power to direct the management
and policies of a Person, directly or
indirectly, whether through ownership of
voting securities, by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings correlative to
the foregoing.
Aggregate
Certificate Principal Balance: For any date of determination,
the sum of the Class A-1A Certificate
Principal Balance, the Class A-1B
Certificate Principal Balance, the Class
A-2A Certificate Principal Balance, the
Class A-2B Certificate Principal Balance,
the Class A-3 Certificate Principal
Balance, the Class R Certificate Principal
Balance, the Class M-1 Certificate
Principal Balance, the Class M-2
Certificate Principal Balance, the Class M-3
Certificate Principal Balance, the Class
B-1 Certificate Principal Balance, the
Class B-2 Certificate Principal Balance and
the Class B-3 Certificate Principal
Balance, in each case as of such date of
determination.
Agreement:
This Pooling and Servicing Agreement and any and all amendments
or supplements hereto made in accordance
with the terms herein.
Applied
Realized Loss Amount: With respect to any Distribution Date,
the
amount, if any, by which, the sum of (i)
the Aggregate Certificate Principal
Balance and (ii) the Class C Certificate
Principal Balance after distributions
of principal on such Distribution Date
exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of such
Distribution Date.
Appraised
Value: With respect to a Mortgage Loan the proceeds of which
were used to purchase the related Mortgaged
Property (or the related residential
dwelling unit in the Underlying Mortgaged
Property in the case of a Co-op Loan),
the "Appraised Value" of a Mortgaged
Property (or the related residential
dwelling unit in the Underlying Mortgaged
Property in the case of a Co-op Loan)
is the lesser of (1) the appraised value
based on an appraisal made for the
Seller by an independent fee appraiser at
the time of the origination of the
related Mortgage Loan, and (2) the sales
price of such Mortgaged Property (or
the related residential dwelling unit in
the Underlying Mortgaged Property in
the case of a Co-op Loan) at such time of
origination. With respect to a
Mortgage Loan the proceeds of which were
used to refinance an existing mortgage
loan, the "Appraised Value" is the
appraised value of the Mortgaged Property (or
the related residential dwelling unit in
the Underlying Mortgaged Property in
the case of a Co-op Loan) based upon the
appraisal obtained at the time of
refinancing.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer
(or UCC-3 assignment (or equivalent
instrument) with respect to each Co-op Loan)
or equivalent instrument, in recordable
form (except in the case of a Co-op
Loan) (except for the name of the assignee
if such Mortgage Loan is endorsed in
blank), sufficient under the laws of the
jurisdiction where the related
Mortgaged Property (or Underlying Mortgaged
Property, in the case of a Co-op
Loan) is located to reflect of record the
sale and assignment of the Mortgage
Loan to the Trustee, which assignment,
notice of transfer or equivalent
instrument may, if permitted by law, be in
the form of one or more blanket
assignments covering Mortgages secured by
Mortgaged Properties located in the
same county.
Available
Funds Cap: Any of the Class A-1 Available Funds Cap, the Class
A-2 Available Funds Cap or the Weighted
Average Available Funds Cap.
Balloon
Loan: A Mortgage Loan having an original term to stated
maturity
of approximately 10 years which provides
for level monthly payments of principal
and interest based on a 30-year
amortization schedule, with a balloon payment of
the remaining outstanding principal balance
due on such Mortgage Loan at its
stated maturity.
-3-
<PAGE>
Book-Entry
Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its
nominee, the ownership of which is
reflected on the books of the Depository or
on the books of a Person maintaining
an account with the Depository (directly,
as a "Depository Participant," or
indirectly, as an indirect participant in
accordance with the rules of the
Depository and as described in Section
5.06). As of the Closing Date, each of
the Class A (other than the Class R
Certificate), Class M and Class B
Certificates constitutes a Class of
Book-Entry Certificates.
Bring Down
Letter: Those certain letter agreements, dated as of June 1,
2005 between Ownit and the Seller, with
respect to the Mortgage Loans.
Business
Day: Any day other than (1) a Saturday or a Sunday, or (2) a
day
on which banking institutions in the State
of California, State of Maryland,
State of Minnesota, State of Texas and in
the City of New York, New York are
authorized or obligated by law or executive
order to be closed.
Cap
Contract: Any of the Class A-1 Cap Contract, the Class A-2 Cap
Contract or the Class A-3/Subordinate
Certificate Cap Contract.
Cap
Contract Account: The separate Eligible Account created and
maintained
by the Securities Administrator pursuant to
Section 4.04(k)(i) in the name of
the Trustee for the benefit of the Trust
Fund and designated "Wells Fargo Bank,
N.A., as securities administrator for HSBC
Bank USA, National Association, as
trustee, in trust for registered holders of
Ownit Mortgage Loan Trust, Mortgage
Loan Asset-Backed Certificates, Series
2005-3." Funds in the Cap Contract
Account shall be held in trust for the
Trust Fund for the uses and purposes set
forth in this Agreement.
Cap
Contract Counterparty: The Royal Bank of Scotland plc.
Cap
Contract Notional Balance: Any of the Class A-1 Cap Contract
Notional
Balance, the Class A-2 Cap Contract
Notional Balance or the Class
A-3/Subordinate Certificate Cap Contract
Notional Balance.
Cap
Contract Termination Date: Any of the Class A-1 Cap Contract
Termination Date, the Class A-2 Cap
Contract Termination Date or the Class
A-3/Subordinate Certificate Cap Contract
Termination Date.
Certificate: Any
one of the certificates of any Class executed by the
Securities Administrator and authenticated
by the Securities Administrator in
substantially the forms attached hereto as
Exhibit A.
Certificate Account: The separate Eligible Account created and
maintained
by the Securities Administrator pursuant to
Section 3.05(e) in the name of the
Trustee for the benefit of the
Certificateholders and designated "Wells Fargo
Bank, N.A., as securities administrator for
HSBC Bank USA, National Association,
as trustee, in trust for registered holders
of Ownit Mortgage Loan Trust,
Mortgage Loan Asset-Backed Certificates,
Series 2005-3." Funds in the
Certificate Account shall be held in trust
for the Certificateholders for the
uses and purposes set forth in this
Agreement.
Certificate Group: Either of Certificate Group One or Certificate
Group
Two.
Certificate Group One: The Class A-1A, Class A-1B and Class R
Certificates. For purposes of Section 2.07
hereof, Certificate Group One shall
be related to Group One.
Certificate Group Two: The Class A-2A and Class A-2B Certificates.
For
purposes of Section 2.07 hereof,
Certificate Group Two shall be related to Group
Two.
-4-
<PAGE>
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate and as of
any
Distribution Date, the Initial Certificate
Principal Balance of such Certificate
less the sum of (1) all amounts distributed
with respect to such Certificate in
reduction of the Certificate Principal
Balance thereof on previous Distribution
Dates pursuant to Section 4.04, and (2) any
Applied Realized Loss Amounts
allocated to such Certificate on previous
Distribution Dates pursuant to Section
4.04(i). On each Distribution Date, after
all distributions of principal on such
Distribution Date, a portion of the Class C
Interest Carry Forward Amount in an
amount equal to the excess of the
Overcollateralization Amount on such
Distribution Date over the
Overcollateralization Amount as of the preceding
Distribution Date (or, in the case of the
first Distribution Date, the initial
Overcollateralization Amount) will be added
to the aggregate Certificate
Principal Balance of the Class C
Certificates (on a pro rata basis).
Notwithstanding the foregoing on any
Distribution Date relating to a Due Period
in which a Subsequent Recovery has been
received by the Servicer, the
Certificate Principal Balance of any Class
of Certificates then outstanding for
which any Applied Realized Loss Amount has
been allocated will be increased, in
order of seniority, by an amount equal to
the lesser of (i) the Unpaid Realized
Loss Amount for such Class of Certificates
and (ii) the total of any Subsequent
Recovery distributed on such date to the
Certificateholders (reduced by the
amount of the increase in the Certificate
Principal Balance of any more senior
Class of Certificates pursuant to this
sentence on such Distribution Date).
Certificate Register: The register maintained pursuant to Section
5.02
hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is
registered in the Certificate Register
(initially, Cede & Co., as nominee for
the Depository) in the case of any Class of
Regular Certificates or the Class R
Certificate, except that solely for the
purpose of giving any consent pursuant
to this Agreement, any Certificate
registered in the name of the Depositor or
any Affiliate of the Depositor shall be
deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall
not be taken into account in
determining whether the requisite amount of
Percentage Interests necessary to
effect such consent has been obtained;
provided, however, that if any such
Person (including the Depositor) owns 100%
of the Percentage Interests evidenced
by a Class of Certificates, such
Certificates shall be deemed to be Outstanding
for purposes of any provision hereof that
requires the consent of the Holders of
Certificates of a particular Class as a
condition to the taking of any action
hereunder. The Securities Administrator and
the Trustee are entitled to rely
conclusively on a certification of the
Depositor or any Affiliate of the
Depositor in determining which Certificates
are registered in the name of an
Affiliate of the Depositor.
Class: All
Certificates bearing the same Class designation as set forth in
Section 5.01 hereof.
Class A
Certificate Principal Balance: For any date of determination,
the
sum of the Class A-1A Certificate Principal
Balance, the Class A-1B Certificate
Principal Balance, the Class A-2A
Certificate Principal Balance, the Class A-2B
Certificate Principal Balance, the Class
A-3 Certificate Principal Balance and
the Class R Certificate Principal
Balance.
Class A
Certificates: Any of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates
and the Class R Certificates.
Class A
Principal Distribution Amount: With respect to any Distribution
Date (1) prior to the Stepdown Date or any
Distribution Date on which a Stepdown
Trigger Event exists, 100% of the Principal
Distribution Amount for such
Distribution Date and (2) on or after the
Stepdown Date where a Stepdown Trigger
Event does not exist, the excess of (A) the
Class A Certificate Principal
Balance
-5-
<PAGE>
immediately prior to such Distribution Date
over (B) the lesser of (i) 67.30% of
the Stated Principal Balance of the
Mortgage Loans as of the end of the
immediately preceding Due Period and (ii)
the excess of the Stated Principal
Balance of the Mortgage Loans as of the end
of the immediately preceding Due
Period over the Minimum Required
Overcollateralization Amount; provided,
however, that in no event will the Class A
Principal Distribution Amount with
respect to any Distribution Date exceed the
aggregate Certificate Principal
Balance of the Class A Certificates.
Class A-1
Available Funds Cap: With respect to a Distribution Date, the
per annum rate equal to the product of (i)
12, (ii) the quotient of (x) the
total scheduled interest on the Mortgage
Loans in Group One based on the Net
Mortgage Rates in effect on the related Due
Date divided by (y) the aggregate
Stated Principal Balance of the Mortgage
Loans in Group One as of the first day
of the related Accrual Period (or, in the
case of the first Distribution Date,
as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30, and
the denominator of which is the actual
number of days in the related Accrual
Period.
Class A-1
Cap Contract: The confirmation and agreement and any related
confirmation thereto, between the Trust
Fund or Trustee and the Cap Contract
Counterparty (in the form of Exhibit N-1
hereto).
Class A-1
Cap Contract Notional Balance: With respect to any Distribution
Date, the Class A-1 Cap Contract Notional
Balance set forth for such
Distribution Date in the Class A-1
One-Month LIBOR Cap Table attached hereto as
Exhibit O-1.
Class A-1
Cap Contract Termination Date: The Distribution Date in May
2008.
Class A-1
Certificates: Any of the Class A-1A and Class A-1B
Certificates.
Class A-1
Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate, adjusted to reflect the length
of the related Accrual Period, equal
to the weighted average of the maximum
lifetime Net Mortgage Rates on the
Adjustable Rate Mortgage Loans in Group One
and the Net Mortgage Rates on the
Fixed Rate Mortgage Loans in Group One. The
Class A-1 Maximum Rate Cap shall
relate to the Class A-1 and Class R
Certificates.
Class A-1
Trigger Event: The situation that exists with respect to any
Distribution Date (x) on or prior to the
Stepdown Date, if the quotient
(expressed as a percentage) of (i) the
aggregate Realized Losses of the Group
One Mortgage Loans incurred from the
Cut-off Date through the last day of the
calendar month preceding such Distribution
Date and (ii) the aggregate principal
balance of the Group One Mortgage Loans
exceeds 2.10% and (y) after the Stepdown
Date, upon the occurrence of a Stepdown
Trigger Event.
Class A-1
Upper Collar: With respect to each Distribution Date with
respect to which payments are received on
the Class A-1 Cap Contract, a rate
equal to the lesser of One-Month LIBOR and
9.750% per annum.
Class A-1A
Certificate: Any Certificate designated as a "Class A-1A
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class A-1A
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class A-1A Certificates.
Class A-1A
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class A-1A Pass-Through Rate on
the Class A-1A Certificate Principal
Balance as
-6-
<PAGE>
of such Distribution Date plus the portion
of any previous distributions on such
Class in respect of Current Interest or a
Class A-1A Interest Carry Forward
Amount that is recovered as a voidable
preference by a trustee in bankruptcy,
less any Non-Supported Interest Shortfall
allocated on such Distribution Date to
the Class A-1A Certificates.
Class A-1A
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1A
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
A-1A Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class A-1A Pass-Through Rate for the
related Accrual Period.
Class A-1A
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.250% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.500% per
annum.
Class A-1A
Pass-Through Rate: For the first Distribution Date, 3.63% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-1A Margin and (2) the
Class A-1 Available Funds Cap for such
Distribution Date.
Class A-1B
Certificate: Any Certificate designated as a "Class A-1B
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class A-1B
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class A-1B Certificates.
Class A-1B
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class A-1B Pass-Through Rate on
the Class A-1B Certificate Principal
Balance as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class A-1B Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class A-1B Certificates.
Class A-1B
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1B
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
A-1B Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class A-1B Pass-Through Rate for the
related Accrual Period.
Class A-1B
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.300% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.600% per
annum.
Class A-1B
Pass-Through Rate: For the first Distribution Date, 3.68% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-1B Margin and (2) the
Class A-1 Available Funds Cap for such
Distribution Date.
Class A-2
Available Funds Cap: With respect to a Distribution Date, the
per annum rate equal to the product of (i)
12, (ii) the quotient of (x) the
total scheduled interest on the Mortgage
Loans in Group Two based on the Net
Mortgage Rates in effect on the related Due
Date divided by (y) the aggregate
Stated Principal Balance of the Mortgage
Loans in Group Two as of the first day
of the related Accrual Period (or, in the
case of the first Distribution Date,
as of the Cut-off Date) and (iii) a
fraction, the
-7-
<PAGE>
numerator of which is 30, and the
denominator of which is the actual number of
days in the related Accrual Period.
Class A-2
Cap Contract: The confirmation and agreement and any related
confirmation thereto, between the Trust
Fund or Trustee and the Cap Contract
Counterparty (in the form of Exhibit N-2
hereto).
Class A-2
Cap Contract Notional Balance: With respect to any Distribution
Date, the Class A-2 Cap Contract Notional
Balance set forth for such
Distribution Date in the Class A-2
One-Month LIBOR Cap Table attached hereto as
Exhibit O-2.
Class A-2
Cap Contract Termination Date: The Distribution Date in May
2008.
Class A-2
Certificates: Any of the Class A-2A and Class A-2B
Certificates.
Class A-2
Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate, adjusted to reflect the length
of the related Accrual Period, equal
to the weighted average of the maximum
lifetime Net Mortgage Rates on the
Adjustable Rate Mortgage Loans in Group Two
and the Net Mortgage Rates on the
Fixed Rate Mortgage Loans in Group Two. The
Class A-2 Maximum Rate Cap shall
relate to the Class A-2 Certificates.
Class A-2
Upper Collar: With respect to each Distribution Date with
respect to which payments are received on
the Class A-2 Cap Contract, a rate
equal to the lesser of One-Month LIBOR and
9.250% per annum.
Class A-2A
Certificate: Any Certificate designated as a "Class A-2A
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class A-2A
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class A-2A Certificates.
Class A-2A
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class A-2A Pass-Through Rate on
the Class A-2A Certificate Principal
Balance as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class A-2A Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class A-2A Certificates.
For purposes of calculating interest,
principal distributions on a Distribution
Date will be deemed to have been made on
the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-2A
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2A
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
A-2A Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class A-2A Pass-Through Rate for the
related Accrual Period.
Class A-2A
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.120% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.240% per
annum.
-8-
<PAGE>
Class A-2A
Pass-Through Rate: For the first Distribution Date, 3.50% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-2A Margin and (2) the
Class A-2 Available Funds Cap for such
Distribution Date.
Class A-2B
Certificate: Any Certificate designated as a "Class A-2B
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class A-2B
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class A-2B Certificates.
Class A-2B
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class A-2B Pass-Through Rate on
the Class A-2B Certificate Principal
Balance as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class A-2B Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class A-2B Certificates.
For purposes of calculating interest,
principal distributions on a Distribution
Date will be deemed to have been made on
the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-2B
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2B
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
A-2B Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class A-2B Pass-Through Rate for the
related Accrual Period.
Class A-2B
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.250% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.500% per
annum.
Class A-2B
Pass-Through Rate: For the first Distribution Date, 3.63% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-2B Margin and (2) the
Class A-2 Available Funds Cap for such
Distribution Date.
Class A-3
Certificate: Any Certificate designated as a "Class A-3
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class A-3
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class A-3 Certificates.
Class A-3
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class A-3 Pass-Through Rate on
the Class A-3 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Class A-3
Current Interest or a Class A-3 Interest
Carry Forward Amount that is recovered
as a voidable preference by a trustee in
bankruptcy, less any Non-Supported
Interest Shortfall allocated on such
Distribution Date to the Class A-3
Certificates.
Class A-3
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
A-3 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class A-3 Pass-Through Rate for the related
Accrual Period.
-9-
<PAGE>
Class A-3
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.500% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 1.000% per
annum.
Class A-3
Pass-Through Rate: For the first Distribution Date, 3.88% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-3 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class
A-3/Subordinate Certificate Cap Contract: The confirmation and
agreement and any related confirmation
thereto, between the Trust Fund or
Trustee and the Cap Contract Counterparty
(in the form of Exhibit N-3 hereto).
Class
A-3/Subordinate Certificate Cap Contract Notional Balance: With
respect to any Distribution Date, the Class
A-3/Subordinate Certificate Cap
Contract Notional Balance set forth for
such Distribution Date in the Class
A-3/Subordinate Certificate One-Month LIBOR
Cap Table attached hereto as Exhibit
O-3.
Class
A-3/Subordinate Certificate Cap Contract Termination Date: The
Distribution Date in May 2008.
Class
A-3/SubordinateCertificate Upper Collar: With respect to each
Distribution Date with respect to which
payments are received on the Class
A-3/Subordinate Certificate Cap Contract, a
rate equal to the lesser of
One-Month LIBOR and 8.90% per annum.
Class B
Certificates: Any of the Class B-1, Class B-2 or Class B-3
Certificates.
Class B-1
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class B-1 Certificates.
Class B-1
Certificate: Any Certificate designated as a "Class B-1
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class B-1
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class B-1 Certificates.
Class B-1
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class B-1 Pass-Through Rate on
the Class B-1 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class B-1 Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class B-1 Certificates.
Class B-1
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
B-1 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class B-1 Pass-Through Rate for the related
Accrual Period.
-10-
<PAGE>
Class B-1
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 1.250% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 1.875% per
annum.
Class B-1
Pass-Through Rate: For the first Distribution Date, 4.63% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class B-1 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class B-1
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance and the
Class M Certificate Principal Balance, have
been reduced to zero and a Stepdown
Trigger Event exists, or as long as a
Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Class A
Certificate Principal Balance (after
taking into account distributions of the
Class A Principal Distribution Amount
on such Distribution Date), (B) the Class
M-1 Certificate Principal Balance
(after taking into account distributions of
the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the
Class M-2 Certificate Principal
Balance (after taking into account
distributions of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (D) the Class M-3 Certificate
Principal Balance (after taking into
account distributions of the Class M-3
Principal Distribution Amount on such
Distribution Date) and (E) the Class B-1
Certificate Principal Balance immediately
prior to such Distribution Date over
(2) the lesser of (A) 95.70% of the Stated
Principal Balance of the Mortgage
Loans as of the end of the immediately
preceding Due Period and (B) the excess
of the Stated Principal Balance of the
Mortgage Loans as of the end of the
immediately preceding Due Period over the
Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I)
on any Distribution Date prior to the
Stepdown Date on which the Certificate
Principal Balance of each Class of Class
A Certificates and Class M Certificates has
been reduced to zero, the Class B-1
Principal Distribution Amount will equal
the lesser of (x) the outstanding
Certificate Principal Balance of the Class
B-1 Certificates and (y) 100% of the
Principal Distribution Amount remaining
after any distributions on such Class A
and Class M Certificates and (II) in no
event will the Class B-1 Principal
Distribution Amount with respect to any
Distribution Date exceed the Class B-1
Certificate Principal Balance.
Class B-1
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-1 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
B-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class B-1
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance."
Class B-2
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class B-2 Certificates.
Class B-2
Certificate: Any Certificate designated as a "Class B-2
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class B-2
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class B-2 Certificates.
Class B-2
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class B-2 Pass-Through Rate on
the Class B-2 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class B-2 Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the
-11-
<PAGE>
Class B-2 Certificates. For purposes of
calculating interest, principal
distributions on a Distribution Date will
be deemed to have been made on the
first day of the Accrual Period in which
such Distribution Date occurs.
Class B-2
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
B-2 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class B-2 Pass-Through Rate for the related
Accrual Period.
Class B-2
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 1.350% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 2.025% per
annum.
Class B-2
Pass-Through Rate: For the first Distribution Date, 4.73% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class B-2 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class B-2
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance, the
Class M Certificate Principal Balance and
the Class B-1 Certificate Principal
Balance have been reduced to zero and a
Stepdown Trigger Event exists, or as
long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of
(A) the Class A Certificate Principal
Balance (after taking into account
distributions of the Class A Principal
Distribution Amount on such Distribution
Date), (B) the Class M-1 Certificate
Principal Balance (after taking into
account distributions of the Class M-1
Principal Distribution Amount on such
Distribution Date), (C) the Class M-2
Certificate Principal Balance (after
taking into account distributions of the
Class M-2 Principal Distribution Amount
on such Distribution Date), (D) the Class
M-3 Certificate Principal Balance
(after taking into account distributions of
the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the
Class B-1 Certificate Principal
Balance (after taking into account
distributions of the Class B-1 Principal
Distribution Amount on such Distribution
Date) and (F) the Class B-2 Certificate
Principal Balance immediately prior to such
Distribution Date over (2) the
lesser of (A) 97.20% of the Stated
Principal Balance of the Mortgage Loans as of
the end of the immediately preceding Due
Period and (B) the excess of the Stated
Principal Balance of the Mortgage Loans as
of the end of the immediately
preceding Due Period over the Minimum
Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any
Distribution Date prior to the
Stepdown Date on which the Certificate
Principal Balance of each Class of Class
A, Class M and Class B-1 Certificates has
been reduced to zero, the Class B-2
Principal Distribution Amount will equal
the lesser of (x) the outstanding
Certificate Principal Balance of the Class
B-2 Certificates and (y) 100% of the
Principal Distribution Amount remaining
after any distributions on such Class A,
Class M and Class B-1 Certificates and (II)
in no event will the Class B-2
Principal Distribution Amount with respect
to any Distribution Date exceed the
Class B-2 Certificate Principal
Balance.
Class B-2
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-2 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
B-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class B-2
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance."
-12-
<PAGE>
Class B-3
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class B-3 Certificates.
Class B-3
Certificate: Any Certificate designated as a "Class B-3
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class B-3
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class B-3 Certificates.
Class B-3
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class B-3 Pass-Through Rate on
the Class B-3 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or a Class B-3 Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class B-3 Certificates. For
purposes of calculating interest, principal
distributions on a Distribution Date
will be deemed to have been made on the
first day of the Accrual Period in which
such Distribution Date occurs.
Class B-3
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
B-3 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class B-3 Pass-Through Rate for the related
Accrual Period.
Class B-3
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 1.800% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 2.700% per
annum.
Class B-3
Pass-Through Rate: For the first Distribution Date, 5.18% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class B-3 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class B-3
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance, the
Class M Certificate Principal Balance, the
Class B-1 Certificate Principal
Balance and the Class B-2 Certificate
Principal Balance have been reduced to
zero and a Stepdown Trigger Event exists,
or as long as a Stepdown Trigger Event
does not exist, the excess of (1) the sum
of (A) the Class A Certificate
Principal Balance (after taking into
account distributions of the Class A
Principal Distribution Amount on such
Distribution Date), (B) the Class M-1
Certificate Principal Balance (after taking
into account distributions of the
Class M-1 Principal Distribution Amount on
such Distribution Date), (C) the
Class M-2 Certificate Principal Balance
(after taking into account distributions
of the Class M-2 Principal Distribution
Amount on such Distribution Date), (D)
the Class M-3 Certificate Principal Balance
(after taking into account
distributions of the Class M-3 Principal
Distribution Amount on such
Distribution Date), (E) the Class B-1
Certificate Principal Balance (after
taking into account distributions of the
Class B-1 Principal Distribution Amount
on such Distribution Date), (F) the Class
B-2 Certificate Principal Balance
(after taking into account distributions of
the Class B-2 Principal Distribution
Amount on such Distribution Date) and (G)
the Class B-3 Certificate Principal
Balance immediately prior to such
Distribution Date over (2) the lesser of (A)
99.00% of the Stated Principal Balance of
the Mortgage Loans as of the end of
the immediately preceding Due Period and
(B) the excess of the Stated Principal
Balance of the Mortgage Loans as of the end
of the immediately preceding Due
-13-
<PAGE>
Period over the Minimum Required
Overcollateralization Amount. Notwithstanding
the foregoing, (I) on any Distribution Date
prior to the Stepdown Date on which
the Certificate Principal Balance of each
Class of Class A, Class M, Class B-1
and Class B-2 Certificates has been reduced
to zero, the Class B-3 Principal
Distribution Amount will equal the lesser
of (x) the outstanding Certificate
Principal Balance of the Class B-3
Certificates and (y) 100% of the Principal
Distribution Amount remaining after any
distributions on such Class A, Class M,
Class B-1 and Class B-2 Certificates and
(II) in no event will the Class B-3
Principal Distribution Amount with respect
to any Distribution Date exceed the
Class B-3 Certificate Principal
Balance.
Class B-3
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-3 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
B-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class B-3
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance"
Class C
Applied Realized Loss Amount: As of any Distribution Date, the
sum
of all Applied Realized Loss Amounts with
respect to the Mortgage Loans which
have been applied to the reduction of the
Certificate Principal Balance of the
Class C Certificates.
Class C
Certificate: Any Certificate designated as a "Class C
Certificate"
on the face thereof, in the form of Exhibit
A hereto, representing the right to
distributions as set forth herein.
Class C
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class C Certificates.
Class C
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class C Distributable Interest
Rate on a notional amount equal to 99.95%
of the aggregate principal balance of
the Lower Tier REMIC Regular Interests
immediately prior to such Distribution
Date (such amount of interest representing
100 percent of the interest payments
on the Class UTC Interest), plus the
interest portion of any previous
distributions on such Class that is
recovered as a voidable preference by a
trustee in bankruptcy, less any
Non-Supported Interest Shortfall allocated on
such Distribution Date to the Class C
Certificates.
Class C
Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on
the Lower Tier REMIC Regular Interests
over (b) two times the weighted average of
the interest rates on the Lower Tier
REMIC I Marker Interests and the Class LTIX
Interest (treating for purposes of
this clause (b) the interest rate on each
of the Lower Tier REMIC I Marker
Interests as being subject to a cap and a
floor equal to the interest rate of
the Corresponding Certificates and treating
the Class LTIX Interest as being
capped at zero). The averages described in
the preceding sentence shall be
weighted on the basis of the respective
principal balances of the Lower Tier
REMIC Regular Interests immediately prior
to any date of determination.
Class C
Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest
with respect to prior Distribution
Dates over (B) the amount actually
distributed to the Class C Certificates with
respect to interest on such prior
Distribution Dates or added to the aggregate
Certificate Principal Balance of the Class
C Certificates.
Class C
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized
Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
C Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
-14-
<PAGE>
Principal Balance of such Class C
Certificates pursuant to the last sentence of
the definition of "Certificate Principal
Balance."
Class
LTA-1A Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 1/4 of the initial
principal balance of its Corresponding
Certificates and an interest rate equal
to the Net Rate.
Class
LTA-1B Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 1/4 of the initial
principal balance of its Corresponding
Certificate and an interest rate equal to
the Net Rate.
Class
LTA-2A Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 1/4 of the initial
principal balance of its Corresponding
Certificate and an interest rate equal to
the Net Rate.
Class
LTA-2B Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 1/4 of the initial
principal balance of its Corresponding
Certificate and an interest rate equal to
the Net Rate.
Class
LTA-3 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class
LTB-1 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class
LTB-2 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class
LTB-3 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class LTIX
Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance
equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of
the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier
REMIC I Marker Interests, and with
an interest rate equal to the Net Rate.
Class
LTIIX Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of
the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier
REMIC II Marker Interests, and with
an interest rate equal to the Net Rate.
Class
LTII1A Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 0.05% of the excess of (i)
the aggregate Cut-off Date Principal
Balance of the Group One Mortgage Loans
over (ii) the aggregate of the initial
Certificate Principal Balances of
Certificate Group One, and with an interest
rate equal to the Net Rate.
-15-
<PAGE>
Class
LTII1B Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 0.05% the aggregate
Cut-off Date Principal Balance of the Group
One Mortgage Loans, and with an
interest rate equal to the Class A-1
Available Funds Cap.
Class
LTII2A Interest: An uncertificated regular interest in the
Lower
Tier REMIC with an initial principal
balance equal to 0.05% of the excess of (i)
the aggregate Cut-off Date Principal
Balance of the Group Two Mortgage Loans
over (ii) the aggregate of the initial
Certificate Principal Balances of
Certificate Group Two, and with an interest
rate equal to the Net Rate.
Class LTII2B
Interest: An uncertificated regular interest in the Lower
Tier REMIC with an initial principal
balance equal to 0.05% of the aggregate
Cut-off Date Principal Balance of the Group
Two Mortgage Loans and with an
interest rate equal to the Class A-2
Available Funds Cap.
Class
LTM-1 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class
LTM-2 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class
LTM-3 Interest: An uncertificated regular interest in the Lower
Tier
REMIC with an initial principal balance
equal to 1/4 of the initial principal
balance of its Corresponding Certificate
and an interest rate equal to the Net
Rate.
Class LTR Interest:
The sole class of "residual interest" in the Lower
Tier REMIC.
Class M
Certificates: Any of the Class M-1, Class M-2 and Class M-3
Certificates.
Class M
Certificate Principal Balance: For any date of determination,
the
sum of the Class M-1 Certificate Principal
Balance, Class M-2 Certificate
Principal Balance and Class M-3 Certificate
Principal Balance.
Class M-1
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class M-1 Certificates.
Class M-1
Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class M-1
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class M-1 Certificates.
Class M-1
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class M-1 Pass-Through Rate on
the Class M-1 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or Class M-1 Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class M-1 Certificates.
-16-
<PAGE>
Class M-1
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
M-1 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class M-1 Pass-Through Rate for the related
Accrual Period.
Class M-1
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.450% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.675% per
annum.
Class M-1
Pass-Through Rate: For the first Distribution Date, 3.83% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-1 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class M-1
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance has been
reduced to zero and a Stepdown Trigger
Event exists, or as long as a Stepdown
Trigger Event does not exist, the excess of
(1) the sum of (A) the Class A
Certificate Principal Balance (after taking
into account distributions of the
Class A Principal Distribution Amount on
such Distribution Date) and (B) the
Class M-1 Certificate Principal Balance
immediately prior to such Distribution
Date over (2) the lesser of (A) 100.00% of
the Stated Principal Balances of the
Mortgage Loans as of the end of the
immediately preceding Due Period and (B) the
excess of the Stated Principal Balances for
the Mortgage Loans as of the end of
the immediately preceding Due Period over
the Minimum Required
Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any
Distribution Date prior to the Stepdown
Date on which the Certificate Principal
Balance of each Class of Class A
Certificates has been reduced to zero, the
Class M-1 Principal Distribution Amount
will equal the lesser of (x) the
outstanding Certificate Principal Balance
of the Class M-1 Certificates and (y)
100% of the Principal Distribution Amount
remaining after any distributions on
such Class A Certificates and (II) in no
event will the Class M-1 Principal
Distribution Amount with respect to any
Distribution Date exceed the Class M-1
Certificate Principal Balance.
Class M-1
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-1 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
M-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class M-1
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance."
Class M-2
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class M-2 Certificates.
Class M-2
Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class M-2
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class M-2 Certificates.
Class M-2
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class M-2 Pass-Through Rate on
the Class M-2 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or Class M-2 Interest Carry
Forward Amount that is recovered as a
voidable preference by a
-17-
<PAGE>
trustee in bankruptcy, less any
Non-Supported Interest Shortfall allocated on
such Distribution Date to the Class M-2
Certificates.
Class M-2
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
M-2 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class M-2 Pass-Through Rate for the related
Accrual Period.
Class M-2
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.660% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.990% per
annum.
Class M-2
Pass-Through Rate: For the first Distribution Date, 4.04% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-2 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class M-2
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance and the
Class M-1 Certificate Principal Balance
have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a
Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Class A
Certificate Principal Balance (after
taking into account distributions of the
Class A Principal Distribution Amount
on such Distribution Date), (B) the Class
M-1 Certificate Principal Balance
(after taking into account distributions of
the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C)
the Class M-2 Certificate Principal
Balance immediately prior to such
Distribution Date over (2) the lesser of (A)
91.60% of the Stated Principal Balances of
the Mortgage Loans as of the end of
the immediately preceding Due Period and
(B) the excess of the Stated Principal
Balances of the Mortgage Loans as of the
end of the immediately preceding Due
Period over the Minimum Required
Overcollateralization Amount. Notwithstanding
the foregoing, (I) on any Distribution Date
prior to the Stepdown Date on which
the Certificate Principal Balance of each
Class of Class A Certificates and the
Class M-1 Certificates has been reduced to
zero, the Class M-2 Principal
Distribution Amount will equal the lesser
of (x) the outstanding Certificate
Principal Balance of the Class M-2
Certificates and (y) 100% of the Principal
Distribution Amount remaining after any
distributions on such Class A and Class
M-1 Certificates and (II) in no event will
the Class M-2 Principal Distribution
Amount with respect to any Distribution
Date exceed the Class M-2 Certificate
Principal Balance.
Class M-2
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-2 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
M-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class M-2
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance."
Class M-3
Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans
which have been applied to the reduction of
the Certificate Principal Balance of
the Class M-3 Certificates.
Class M-3
Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, in the
form of Exhibit A hereto, representing
the right to distributions as set forth
herein.
Class M-3
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class M-3 Certificates.
-18-
<PAGE>
Class M-3
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class M-3 Pass-Through Rate on
the Class M-3 Certificate Principal Balance
as of such Distribution Date plus
the portion of any previous distributions
on such Class in respect of Current
Interest or Class M-3 Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class M-3 Certificates.
Class M-3
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3
Current Interest with respect to
prior Distribution Dates over (B) the
amount actually distributed to the Class
M-3 Certificates with respect to interest
on such prior Distribution Dates and
(2) interest on such excess (to the extent
permitted by applicable law) at the
Class M-3 Pass-Through Rate for the related
Accrual Period.
Class M-3
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.720% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 1.080% per
annum.
Class M-3
Pass-Through Rate: For the first Distribution Date, 4.10% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-3 Margin and (2) the
Weighted Average Available Funds Cap for
such Distribution Date.
Class M-3
Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of
the Principal Distribution Amount
for such Distribution Date if the Class A
Certificate Principal Balance, Class
M-1 Certificate Principal Balance and Class
M-2 Certificate Principal Balance
have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a
Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the
Class A Certificate Principal Balance
(after taking into account distributions
of the Class A Principal Distribution
Amount on such Distribution Date), (B) the
Class M-1 Certificate Principal Balance
(after taking into account distributions
of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C)
the Class M-2 Certificate Principal Balance
(after taking into account
distributions of the Class M-2 Principal
Distribution Amount on such
Distribution Date) and (D) the Class M-3
Certificate Principal Balance
immediately prior to such Distribution Date
over (2) the lesser of (A) 93.10% of
the Stated Principal Balances of the
Mortgage Loans as of the end of the
immediately preceding Due Period and (B)
the excess of the Stated Principal
Balances for the Mortgage Loans as of the
end of the immediately preceding Due
Period over the Minimum Required
Overcollateralization Amount. Notwithstanding
the foregoing, (I) on any Distribution Date
prior to the Stepdown Date on which
the Certificate Principal Balance of each
Class of Class A Certificates, the
Class M-1 Certificates and the Class M-2
Certificates has been reduced to zero,
the Class M-3 Principal Distribution Amount
will equal the lesser of (x) the
outstanding Certificate Principal Balance
of the Class M-3 Certificates and (y)
100% of the Principal Distribution Amount
remaining after any distributions on
such Class A, Class M-1 and Class M-2
Certificates and (II) in no event will the
Class M-3 Principal Distribution Amount
with respect to any Distribution Date
exceed the Class M-3 Certificate Principal
Balance.
Class M-3
Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-3 Applied
Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class
M-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
increases in the Certificate
Principal Balance of such Class M-3
Certificates pursuant to the last sentence
of the definition of "Certificate Principal
Balance."
-19-
<PAGE>
Class P
Certificate: Any Certificate designated as a Class P
Certificate
on the face thereof, executed by the
Securities Administrator and authenticated
by the Securities Administrator in
substantially the form set forth in Exhibit
A, representing the right to distributions
as set forth herein.
Class R
Certificate: The Class R Certificate executed by the Securities
Administrator and authenticated by the
Securities Administrator in substantially
the form set forth in Exhibit A.
Class R
Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance
of the Class R Certificate.
Class R
Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period
at the Class R Pass-Through Rate on
the Class R Certificate Principal Balance
as of such Distribution Date plus the
portion of any previous distributions on
such Class in respect of Current
Interest or a Class R Interest Carry
Forward Amount that is recovered as a
voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution
Date to the Class R Certificate. For
purposes of calculating interest, principal
distributions on a Distribution Date
will be deemed to have been made on the
first day of the Accrual Period in which
such Distribution Date occurs.
Class R
Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class R
Current Interest with respect to prior
Distribution Dates over (B) the amount
actually distributed to the Class R
Certificate with respect to interest on
such prior Distribution Dates and (2)
interest on such excess (to the extent
permitted by applicable law) at the Class
R Pass-Through Rate for the related Accrual
Period.
Class R
Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date for the
Certificates, 0.250% per annum and, as
of any Distribution Date after the Initial
Optional Termination Date, 0.500% per
annum.
Class R
Pass-Through Rate: For the first Distribution Date, 3.63% per
annum. As of any Distribution Date
thereafter, the lesser of (1) One-Month LIBOR
plus the Class R Margin and (2) the Class
A-1 Available Funds Cap for such
Distribution Date.
Class R-X
Certificate: The Class R-X Certificate executed by the Trustee
and authenticated by the Trustee in
substantially the form set forth in Exhibit
A.
Class UTB
Interests: The Class UTB1 Interest, the Class UTB2 Interest and
the Class UTB3 Interest.
Class UTB1
Interest: An uncertificated "regular interest" in the Upper
Tier REMIC having the same rights to
payments as the Class B-1 Certificates
other than the right to any payments in
respect of Excess Interest.
Class UTB2
Interest: An uncertificated "regular interest" in the Upper
Tier REMIC having the same rights to
payments as the Class B-2 Certificates
other than the right to any payments in
respect of Excess Interest
Class UTB3
Interest: An uncertificated "regular interest" in the Upper
Tier REMIC having the same rights to
payments as the Class B-3 Certificates
other than the right to any payments in
respect of Excess Interest.
-20-
<PAGE>
Class UTC
Interest: An uncertificated "regular interest" in the Upper
Tier
REMIC having the same rights to payments as
the Uncertificated Class C Interest.
Class UTM
Interests: The Class UTM2 Interest and the Class UTM3 Interest.
Class UTM2
Interest: An uncertificated "regular interest" in the Upper
Tier REMIC having the same rights to
payments as the Class M-2 Certificates
other than the right to any payments in
respect of Excess Interest.
Class UTM3
Interest: An uncertificated "regular interest" in the Upper
Tier REMIC having the same rights to
payments as the Class M-3 Certificates
other than the right to any payments in
respect of Excess Interest.
Closing
Date: July 14, 2005.
Code: The
Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection
Account: The separate Eligible Account created and initially
maintained by the Servicer pursuant to
Section 3.05(d) in the name of the
Trustee for the benefit of the
Certificateholders and designated "Litton Loan
Servicing LP, as servicer for HSBC Bank
USA, National Association, as trustee,
in trust for registered holders of Ownit
Mortgage Loan Trust, Mortgage Loan
Asset-Backed Certificates, Series 2005-3."
Funds in the Collection Account shall
be held in trust for the Certificateholders
for the uses and purposes set forth
in this Agreement.
Combined
Loan-to-Value Ratio: For any Mortgage Loan in a second lien
position, the fraction, expressed as a
percentage, the numerator of which is the
sum of (1) the original principal balance
of the related Mortgage Loan and (2)
any outstanding principal balances of
Mortgage Loans the liens on which are
senior to the lien on such related Mortgage
Loan (such sum calculated at the
date of origination of such related
Mortgage Loan) and the denominator of which
is the lesser of (A) the Appraised Value of
the related Mortgaged Property (or
applicable dwelling unit, in the case of a
Co-op Loan) and (B) the sales price
of the related Mortgaged Property (or
applicable dwelling unit, in the case of a
Co-op Loan) at time of origination.
Compensating Interest: With respect to any Mortgage Loan and
any
Distribution Date, an amount equal to the
portion of any Prepayment Interest
Shortfalls required to be deposited in the
Collection Account by the Servicer
pursuant to Section 4.02 hereof.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged
Property (or Underlying Mortgaged Property,
in the case of a Co-op Loan),
whether permanent or temporary, partial or
entire, by exercise of the power of
eminent domain or condemnation, to the
extent not required to be released either
to a Mortgagor in accordance with the terms
of the related mortgage loan
documents or to the holder of a senior lien
on the Mortgaged Property (or
Underlying Mortgaged Property, in the case
of a Co-op Loan).
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to
a
dwelling unit occupied by the Mortgagor and
relating to the stock allocated to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a
dwelling unit in a residential cooperative
housing corporation and a collateral
assignment of the related Co-op Lease.
-21-
<PAGE>
Corresponding Certificates: With respect to the Class LTA-1A
Interest, the
Class A-1A and Class R Certificates. With
respect to the Class LTA-1B Interest,
the Class A-1B Certificates. With respect
to the Class LTA-2A Interest, the
Class A-2A Certificates. With respect to
the Class LTA-2B Interest, the Class
A-2B Certificates. With respect to the
Class LTA-3 Interest, the Class A-3
Certificates. With respect to the Class
LTM-1 Interest, the Class M-1
Certificates. With respect to the Class
LTM-2 Interest, the Class M-2
Certificates. With respect to the Class
LTM-3 Interest, the Class M-3
Certificates. With respect to the Class
LTB-1 Interest, the Class B-1
Certificates. With respect to the Class
LTB-2 Interest, the Class B-2
Certificates. With respect to the Class
LTB-3 Interest, the Class B-3
Certificates.
Current
Interest: Any of the Class A-1A Current Interest, the Class
A-1B
Current Interest, the Class A-2A Current
Interest, the Class A-2B Current
Interest, the Class A-3 Current Interest,
the Class R Current Interest, the
Class M-1 Current Interest, the Class M-2
Current Interest, the Class M-3
Current Interest, the Class B-1 Current
Interest, the Class B-2 Current
Interest, the Class B-3 Current Interest
and the Class C Current Interest.
Custodian:
Wells Fargo Bank, N.A., on behalf of HSBC as Trustee.
Cut-off
Date: June 1, 2005.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close
of business on the calendar day
immediately preceding the Cut-off Date
after application of all payments of
principal due on or prior to the Cut-off
Date, whether or not received, and all
Principal Prepayments received prior to the
Cut-off Date, but without giving
effect to any installments of principal
received in respect of Due Dates after
the Cut-off Date.
Definitive
Certificates: As defined in Section 5.06.
Deleted
Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
Delinquent: A Mortgage Loan is "delinquent" if any payment due
thereon is
not made pursuant to the terms of such
Mortgage Loan by the close of business on
the day such payment is scheduled to be
due. A Mortgage Loan is "30 days
delinquent" if such payment has not been
received by the close of business on
the corresponding day of the month
immediately succeeding the month in which
such payment was due, or, if there is no
such corresponding day (e.g., as when a
30-day month follows a 31-day month in
which a payment was due on the 31st day
of such month), then on the last day of
such immediately succeeding month.
Similarly for "60 days delinquent," "90
days delinquent" and so on.
Denomination: With respect to each Certificate, the amount set
forth on
the face thereof as the "Initial Principal
Balance of this Certificate."
Depositor:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company
("DTC"), the nominee of which is Cede &
Co., or any other organization
registered as a "clearing agency" pursuant
to Section 17A of the Securities
Exchange Act of 1934, as amended. The
Depository shall initially be the
registered Holder of the Book-Entry
Certificates. 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.
-22-
<PAGE>
Depository
Agreement: With respect to Classes of Book-Entry Certificates,
the agreement between the Securities
Administrator and the initial Depository.
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.
Designated
Transaction: A transaction in which the assets underlying the
Certificates consist of single-family
residential, multi-family residential,
home equity, manufactured housing and/or
commercial mortgage obligations that
are secured by single-family residential,
multi-family residential, commercial
real property or leasehold interests
therein.
Determination Date: With respect to any Distribution Date, the 15th
day of
the month of such Distribution Date or, if
such 15th day is not a Business Day,
the immediately preceding Business Day.
Disqualified Organization: (1) the United States, any state or
political
subdivision thereof, any foreign
government, any international organization, or
any agency or instrumentality of any of the
foregoing, (2) any organization
(other than a cooperative described in
Section 521 of the Code) which is exempt
from tax under Chapter 1 of Subtitle A of
the Code unless such organization is
subject to the tax imposed by Section 511
of the Code and (3) any organization
described in Section 1381(a)(2)(C) of the
Code.
Distribution Date: The 25th day of each calendar month, or if such
25th
day is not a Business Day, the next
succeeding Business Day, commencing in July
2005.
Due Date:
With respect to any Distribution Date and any Mortgage Loan,
the
day during the related Due Period on which
a Scheduled Payment is due.
Due
Period: With respect to any Distribution Date, the period beginning
on
the second day of the calendar month
preceding the calendar month in which such
Distribution Date occurs and ending on the
first day of the month in which such
Distribution Date occurs.
Eligible
Account: An account that is (i) maintained with a depository
institution the long-term unsecured debt
obligations of which are rated by each
Rating Agency in one of its two highest
rating categories, or (ii) maintained
with the corporate trust department of a
bank which (A) has a rating of at least
Baa3 or P-3 by Moody's and (B) is either
the Depositor or the corporate trust
department of a national bank or banking
corporation which has a rating of at
least A-1 by S&P or F1 by Fitch, or
(iii) an account or accounts the deposits in
which are fully insured by the FDIC, or
(iv) an account or accounts, acceptable
to each Rating Agency without reduction or
withdrawal of the rating of any Class
of Certificates, as evidenced in writing,
by a depository institution in which
such accounts are insured by the FDIC (to
the limit established by the FDIC),
the uninsured deposits in which accounts
are otherwise secured such that, as
evidenced by an Opinion of Counsel
delivered to and acceptable to the Securities
Administrator, the Trustee and each Rating
Agency, the Certificateholders have a
claim with respect to the funds in such
account and a perfected first security
interest against any collateral (which
shall be limited to Permitted
Investments) securing such funds that is
superior to claims of any other
depositors or creditors of the depository
institution with which such account is
maintained, or (v) maintained at an
eligible institution whose commercial paper,
short-term debt or other short-term
deposits are rated at least A-1+ by S&P and
F-1+ by Fitch, or (vi) maintained with a
federal or state chartered depository
institution the deposits in which are
insured by the FDIC to the applicable
limits and the short-term unsecured debt
obligations of which (or, in the case
of a depository institution that is a
subsidiary of a holding company, the
short-term unsecured debt obligations of
such holding company) are rated A-1 by
S&P or Prime-1 by
-23-
<PAGE>
Moody's at the time any deposits are held
on deposit therein, or (vii) otherwise
acceptable to each Rating Agency, as
evidenced by a letter from each Rating
Agency to the Securities Administrator and
the Trustee.
ERISA: The
Employee Retirement Income Security Act of 1974, including any
successor or amendatory provisions.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that
would satisfy the requirements of
Prohibited Transaction Exemption 90-29,
Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted
to the Underwriter by the United
States Department of Labor (or any other
applicable underwriter's exemption
granted by the United States Department of
Labor), except, in relevant part, for
the requirement that the certificates have
received a rating at the time of
acquisition that is in one of the three (or
four, in the case of a "designated
transaction") highest generic rating
categories by at least one of the Rating
Agencies.
ERISA
Restricted Certificates: The Class C, Class P, Class R and Class
R-X
Certificates and any other Certificate,
unless the acquisition and holding of
such other Certificate is covered by and
exempt under the Underwriter's
exemption.
Event of
Default: As defined in Section 7.01 hereof.
Excess
Interest: On any Distribution Date, for each Class of the Class
A,
Class M and Class B Certificates, the
excess, if any, of (1) the amount of
interest such Class of Certificates is
entitled to receive on such Distribution
Date at its Pass-Through Rate over (2) the
amount of interest such Class of
Certificates would have been entitled to
receive on such Distribution Date had
the Pass-Through Rate for such Class been
the REMIC Pass-Through Rate.
Excess
Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of
(1) the unpaid principal balance of
such Liquidated Loan as of the date of such
liquidation plus (2) interest at the
Mortgage Rate from the Due Date as to which
interest was last paid or advanced
to Certificateholders (and not reimbursed
to the Servicer) up to the Due Date in
the month in which such Liquidation
Proceeds are required to be distributed on
the unpaid principal balance of such
Liquidated Loan outstanding during each Due
Period as to which such interest was not
paid or advanced.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Extra
Principal Distribution Amount: With respect to any Distribution
Date, (1) prior to the Stepdown Date, the
excess of (A) the sum of (i) the
Aggregate Certificate Principal Balance
immediately preceding such Distribution
Date reduced by the Principal Funds with
respect to such Distribution Date and
(ii) $3,453,199 and over (B) the aggregate
Stated Principal Balance of the
Mortgage Loans as of such Distribution Date
and (2) on and after the Stepdown
Date, (A) the sum of (x) the Aggregate
Certificate Principal Balance immediately
preceding such Distribution Date, reduced
by the Principal Funds with respect to
such Distribution Date and (y) the greater
of (a) 1.00% of the aggregate Stated
Principal Balance of the Mortgage Loans and
(b) the Minimum Required
Overcollateralization Amount less (B) the
aggregate Stated Principal Balance of
the Mortgage Loans as of such Distribution
Date; provided, however, that if on
any Distribution Date a Stepdown Trigger
Event is in effect, the Extra Principal
Distribution Amount will not be reduced to
the applicable percentage of the
then-current aggregate Stated Principal
Balance of the Mortgage Loans (and will
remain fixed at the applicable percentage
of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due
Date immediately prior to the
Stepdown Trigger Event) until the next
Distribution Date on which the Stepdown
Trigger Event is not in effect.
-24-
<PAGE>
Fannie
Mae: A federally chartered and privately owned corporation
organized and existing under the Federal
National Mortgage Association Charter
Act, or any successor thereto.
FDIC: The
Federal Deposit Insurance Corporation, or any successor
thereto.
Fitch:
Fitch, Inc., or any successor in interest.
Fixed Rate
Mortgage Loan: A Mortgage Loan identified in the Mortgage Loan
Schedule as having a Mortgage Rate which is
fixed.
Floating Rate Certificate
Carryover: With respect to a Distribution Date,
in the event that the Pass-Through Rate for
a class of Class A, Class M or Class
B Certificates is based upon the related
Available Funds Cap, the excess of (1)
the amount of interest that such Class
would have been entitled to receive on
such Distribution Date had the Pass-Through
Rate for that Class not been
calculated based on the related Available
Funds Cap, up to but not exceeding
greater of (x) the related Maximum Rate Cap
or (y) the sum of (i) the related
Available Funds Cap and (ii) the product of
(A) a fraction, the numerator of
which is 360 and the denominator of which
is the actual number of days in the
related Accrual Period and (B) the quotient
obtained by dividing (I) an amount
equal to the proceeds, if any, payable
under the related Cap Contract with
respect to such Distribution Date by (II)
the aggregate Certificate Principal
Balance of each of the Classes of
Certificates to which such Cap Contract
relates for such Distribution Date over (2)
the amount of interest such class
was entitled to receive on such
Distribution Date based on the related Available
Funds Cap, together with (i) the unpaid
portion of any such excess from prior
Distribution Dates (and interest accrued
thereon at the then applicable
Pass-Through Rate, without giving effect to
the applicable Available Funds Cap)
and (ii) any amount previously distributed
with respect to Floating Rate
Certificate Carryover for such class that
is recovered as a voidable preference
by a trustee in bankruptcy.
Freddie
Mac: A corporate instrumentality of the United States created
and
existing under Title III of the Emergency
Home Finance Act of 1970, as amended,
or any successor thereto.
Grantor
Trusts: The grantor trusts described in Section 2.07 hereof.
Gross
Margin: The percentage set forth in the related Mortgage Note
for
each of the Adjustable Rate Mortgage Loans
which is to be added to the
applicable index for use in determining the
Mortgage Rate on each Adjustment
Date, and which is set forth in the
Mortgage Loan Schedule for each Adjustable
Rate Mortgage Loan.
Group One:
The portion of the Mortgage Pool identified as "Group One" in
the Prospectus Supplement.
Group One
Mortgage Loan: Any Mortgage Loan at any time identified in the
Group One Mortgage Loan Schedule attached
hereto as Exhibit B-2.
Group One
Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the
aggregate Certificate Principal Balance of
the Class A-1 and Class R Certificates and
(ii) the product of (x) the Group One
Principal Distribution Percentage and (y)
the Class A Principal Distribution
Amount; provided, however, that with
respect to any Distribution Date on which
the Class A-1 and Class R Certificates are
outstanding and the Certificate
Principal Balance of the Class A-2
Certificates has been reduced to zero, the
Group One Principal Distribution Amount
will equal the Class A Principal
Distribution Amount.
-25-
<PAGE>
Group One
Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as
a percentage, the numerator of which
is the amount of Principal Funds received
with respect to Mortgage Loans in
Group One and the denominator of which is
the amount of Principal Funds received
from all of the Mortgage Loans in the
mortgage pool.
Group Two:
The portion of the Mortgage Pool identified as "Group Two" in
the Prospectus Supplement.
Group Two Mortgage
Loan: Any Mortgage Loan at any time identified in the
Group Two Mortgage Loan Schedule attached
hereto as Exhibit B-3.
Group Two
Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the
aggregate Certificate Principal Balance of
the Class A-2 Certificates and (ii) the
product of (x) the Group Two Principal
Distribution Percentage and (y) the Class A
Principal Distribution Amount;
provided, however, that with respect to any
Distribution Date on which the Class
A-2 Certificates are outstanding and the
Certificate Principal Balances of the
Class A-1 and Class R Certificates have
been reduced to zero, the Group Two
Principal Distribution Amount will equal
the Class A Principal Distribution
Amount.
Group Two
Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as
a percentage, the numerator of which
is the amount of Principal Funds received
with respect to Mortgage Loans in
Group Two and the denominator of which is
the amount of Principal Funds received
from all of the Mortgage Loans in the
mortgage pool.
Indenture:
An indenture relating to the issuance of notes guaranteed by
the NIMs Insurer.
Initial
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the
first Adjustment Date following the
origination of such Mortgage Loan.
Initial
Certificate Principal Balance: With respect to any Certificate,
the Certificate Principal Balance of such
Certificate or any predecessor
Certificate on the Closing Date as set
forth in Section 5.01 hereof.
Initial
Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment
Date.
Initial
Optional Termination Date: The first Distribution Date on which
the aggregate Stated Principal Balance of
the Mortgage Loans (or if such
Mortgage Loan is an REO Property, the fair
market value of such REO Property) is
equal to or less than 10% of the aggregate
Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
Insurance
Policy: With respect to any Mortgage Loan or the related
Mortgaged Property (or the related
Underlying Mortgaged Property, in the case of
a Co-op Loan) included in the Trust Fund,
any insurance policy, including all
riders and endorsements thereto in effect
with respect to such Mortgage Loan or
Mortgaged Property (or related Underlying
Mortgage Property, in the case of a
Co-op Loan), including any replacement
policy or policies for any insurance
policies.
Insurance
Proceeds: Proceeds paid in respect of a Mortgage Loan or the
related Mortgaged Property (or the related
Underlying Mortgaged Property, in the
case of a Co-op Loan) pursuant to any
Insurance Policy or any other insurance
policy covering such Mortgage Loan or
Mortgaged Property (or Underlying
Mortgaged Property, in the case of a Co-op
Loan), to the extent such proceeds
are payable to
-26-
<PAGE>
the mortgagee under the Mortgage, the
Servicer or the trustee under the deed of
trust and are not applied to the
restoration of the related Mortgaged Property
(or the related Underlying Mortgaged
Property, in the case of a Co-op Loan) or
released either to the Mortgagor or to the
holder of a senior lien on the
related Mortgaged Property (or the related
Underlying Mortgaged Property in the
case of a Co-op Loan) in accordance with
the procedures that the Servicer would
follow in servicing mortgage loans held for
its own account, in each case other
than any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to a Mortgage
Loan or the related Mortgaged
Property (or the related Underlying
Mortgaged Property, in the case of a Co-op
Loan).
Interest
Carry Forward Amount: Any of the Class A-1A Interest Carry
Forward Amount, the Class A-1B Interest
Carry Forward Amount, the Class A-2A
Interest Carry Forward Amount, the Class
A-2B Interest Carry Forward Amount, the
Class A-3 Interest Carry Forward Amount,
the Class R Interest Carry Forward
Amount, the Class M-1 Interest Carry
Forward Amount, the Class M-2 Interest
Carry Forward Amount, the Class M-3
Interest Carry Forward Amount, the Class B-1
Interest Carry Forward Amount, the Class
B-2 Interest Carry Forward Amount, the
Class B-3 Interest Carry Forward Amount or
the Class C Interest Carry Forward
Amount, as the case may be.
Interest
Determination Date: With respect to the Certificates, (i) for
any
Accrual Period other than the first Accrual
Period, the second LIBOR Business
Day preceding the commencement of such
Accrual Period and (ii) for the first
Accrual Period, July 12, 2005.
Interest
Funds: With respect to any Distribution Date, the sum, without
duplication, of (1) all scheduled interest
due during the related Due Period and
received before the related Servicer
Remittance Date or advanced on or before
the related Servicer Remittance Date less
the Servicing Fee, (2) all Advances
relating to interest with respect to the
Mortgage Loans and such Distribution
Date, (3) all Compensating Interest with
respect to the Mortgage Loans and such
Distribution Date, (4) Liquidation Proceeds
with respect to the Mortgage Loans
(to the extent such Liquidation Proceeds
relate to interest) collected during
the related Prepayment Period, (5) all
proceeds of any purchase pursuant to
Section 2.02 or 2.03 during the related
Prepayment Period or pursuant to Section
9.01 not later than the related
Determination Date (to the extent that such
proceeds relate to interest) less the
Servicing Fee and (6) all Prepayment
Charges received with respect to the
Mortgage Loans during the related
Prepayment Period less (A) all
Non-Recoverable Advances relating to interest and
(B) other amounts reimbursable to the
Servicer, the Master Servicer, the
Securities Administrator and the Trustee
pursuant to this Agreement.
Latest
Possible Maturity Date: The latest maturity date for any
Mortgage
Loan in the Trust Fund plus one year.
LIBOR
Business Day: Any day on which banks in the City of London,
England
and New York City, U.S.A. are open and
conducting transactions in foreign
currency and exchange.
Liquidated
Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that either (a) pursuant to
Section 3.12 has been realized upon or
liquidated through deed-in-lieu of
foreclosure, foreclosure sale, trustee's sale
or other realization as provided by
applicable law governing the real property
subject to the related Mortgage and any
security agreements and as to which the
Servicer has certified (in accordance with
Section 3.12) in the related
Prepayment Period that it has received all
amounts it expects to receive in
connection with such liquidation or (b) as
to which is not a first lien Mortgage
Loan and is delinquent 180 days or longer,
the Servicer has certified in a
certificate of an officer of the Servicer
delivered to the Depositor and the
Trustee that it does not believe that there
is a
-27-
<PAGE>
reasonable likelihood that any further net
proceeds will be received or
recovered with respect to such Mortgage
Loan.
Liquidation Proceeds: Amounts, including Condemnation Proceeds,
Insurance
Proceeds, received in connection with the
partial or complete liquidation of a
Mortgage Loan, whether through trustee's
sale, foreclosure sale, sale by the
Servicer pursuant to this Agreement or
otherwise or amounts received in
connection with any condemnation or partial
release of a Mortgaged Property and
any other proceeds received in connection
with the final sale of a related REO
Property, less the sum of related
unreimbursed Advances, Servicing Fees,
Servicing Advances and any other expenses
related to such Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the
fraction,
expressed as a percentage, the numerator of
which is the original principal
balance of the related Mortgage Loan and
the denominator of which is the lesser
of (X) the Appraised Value of the related
Mortgaged Property (or applicable
dwelling unit, in the case of a Co-op Loan)
and (Y) the sales price of the
related Mortgaged Property (or applicable
dwelling unit, in the case of a Co-op
Loan) at the time of origination.
Losses:
Any losses, claims, damages, liabilities or expenses
collectively.
Lower Tier
REMIC: As described in the Preliminary Statement and Section
2.07.
Lower Tier
REMIC Interests: Each of the Class LTA-1A Interest, the Class
LTA-1B Interest, the Class LTA-2A Interest,
the Class LTA-2B Interest, the Class
LTA-3 Interest, the Class LTM-1 Interest,
the Class LTM-2 Interest, the Class
LTM-3 Interest, the Class LTB-1 Interest,
the Class LTB-2 Interest, the Class
LTB-3 Interest, the Class LTIX Interest,
the Class LTIIX Interest, the Class
LTII1A Interest, the Class LTII1B Interest,
the Class LTII2A Interest, the Class
LTII2B Interest and the Class LTR
Interest.
Lower Tier
REMIC I Marker Interests: Each of the classes of Lower Tier
REMIC Regular Interests other than the
Class LTIX Interest, the Class LTIIX
Interest, the Class LTII1A Interest, the
Class LTII1B Interest, the Class LTII2A
Interest, the Class LTII2B Interest.
Lower Tier
REMIC II Marker Interests: Each of the Class LTII1A Interest,
the Class LTII1B Interest, the Class LTII2A
Interest and the Class LTII2B
Interest.
Lower Tier
REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier
REMIC Subordinated Balance Ratio: The ratio of (i) the
principal balance of the Class LTII1A
Interest to (ii) the principal balance of
the Class LTII2A Interest that is equal to
the ratio of (i) the excess of (A)
the aggregate Stated Principal Balance of
Group One over (B) the current
Certificate Principal Balance of the Class
A-1 and Class R Certificates to (ii)
the excess of (A) the aggregate Stated
Principal Balance of Group Two over (B)
the current Certificate Principal Balance
of the Class A-2 Certificates.
Master
Servicer: Wells Fargo Bank, N.A., a national banking
association,
or any successor in interest.
Maximum
Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan,
the maximum rate of interest set forth as
such in the related Mortgage Note and
with respect to each Fixed Rate Mortgage
Loan, the rate of interest set forth in
the related Mortgage Note.
-28-
<PAGE>
Maximum
Rate Cap: Any of the Class A-1 Maximum Rate Cap, the Class A-2
Maximum Rate Cap or the Weighted Average
Maximum Rate Cap.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of
the State of Delaware, or any successor
thereto.
MERS Loan:
Any Mortgage Loan registered with MERS on the MERS System.
MERS
System: The system of recording transfers of mortgage
electronically
maintained by MERS.
MIN: The
loan number for any MERS Loan.
Minimum
Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan,
the minimum rate of interest set forth as
such in the related Mortgage Note.
Minimum
Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the Stated
Principal Balance of the Mortgage Loans
as of the Cut-off Date.
MOM Loan:
Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of
such Mortgage Loan and its successors
and assigns.
Monthly
Excess Interest Amount: With respect to each Distribution Date,
the amount, if any, by which the Interest
Funds for such Distribution Date
exceeds the aggregate amount distributed on
such Distribution Date pursuant to
Section 4.04(b) (other than the last clause
thereof).
Monthly
Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's:
Moody's Investors Service, Inc. or any successor in interest.
Mortgage:
With respect to a Mortgage Loan that is not a Co-op Loan, the
mortgage, deed of trust or other instrument
with all riders attached thereto
creating a first or second lien or a first
or second priority ownership interest
in an estate in fee simple in real property
securing a Mortgage Note. With
respect to a Co-op Loan, the security
agreement with all riders attached thereto
creating a security interest in the stock
allocated to a dwelling unit in a
residential cooperative housing corporation
and pledged to secure such Co-op
Loan and the related Co-op Lease.
Mortgage
File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan
and any additional documents delivered
to the Trustee to be added to the Mortgage
File pursuant to this Agreement.
Mortgage
Group: Either of Group One or Group Two.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to
the
Trustee pursuant to the provisions hereof
as from time to time are held as a
part of the Trust Fund (including any REO
Properties the mortgage loans so held
being identified in the Mortgage Loan
Schedule, notwithstanding foreclosure or
other acquisition of title of the related
Mortgaged Property. Any mortgage loan
that was intended by the parties hereto to
be transferred to the Trust Fund as
indicated by such Mortgage Loan Schedule
which is in fact not so transferred for
any reason shall continue to be a Mortgage
Loan hereunder until the Purchase
Price with respect thereto has been paid to
the Trust Fund.
-29-
<PAGE>
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Trustee to reflect the
deletion of Deleted Mortgage Loans and the
addition of Replacement Mortgage Loans
pursuant to the provisions of this
Agreement transferred to the Trustee as
part of the Trust Fund and from time to
time subject to this Agreement, attached
hereto as Exhibits B-1, B-2 and B-3,
setting forth the following information
with respect to each Mortgage Loan:
(i) the
loan number;
(ii) borrower
name and address;
(iii) the unpaid
principal balance of the Mortgage Loans;
(iv) the Initial
Mortgage Rate;
(v) the
original maturity date and the months remaining before
maturity date;
(vi) the
original principal balance;
(vii) the Cut-off Date
Principal Balance;
(viii) the first payment due date of the Mortgage Loan;
(ix) the
Loan-to-Value Ratio at origination with respect to a
first lien Mortgage Loan, or the Combined Loan-to-Value Ratio
with respect to a second lien Mortgage Loan;
(x) a code
indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(xi)
a code
indicating the property type;
(xii) with respect to
each Adjustable Rate Mortgage Loan;
(A) the
frequency of each Adjustment Date;
(B) the next
Adjustment Date;
(C) the Maximum Mortgage
Rate;
(D) the Minimum
Mortgage Rate;
(E) the Mortgage
Rate as of the Cut-off Date;
(F) the related
Periodic Rate Cap;
(G) the Gross
Margin;
(H) the lifetime
rate cap;
(xiii) location of the related Mortgaged Property (or
Underlying
Mortgaged Property, in the case of a Co-op Loan);
-30-
<PAGE>
(xiv) a
code indicating whether a Prepayment Charge is applicable
and, if so, the term of such Prepayment Charge;
(xv) the Credit Score
and date obtained; and
(xvi) the MIN.
Mortgage
Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan
and all amendments, modifications and
attachments thereto with all riders
attached thereto.
Mortgage
Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgaged
Property: The underlying property securing a Mortgage Loan.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgagor:
The obligor on a Mortgage Note.
Net
Mortgage Rate: As to each Mortgage Loan, and at any time, the
per
annum rate equal to the then current
Mortgage Rate less the Servicing Fee Rate.
Net Rate:
With respect to any Distribution Date, the product of (x) the
weighted average Net Mortgage Rate for the
Mortgage Loans calculated based on
the respective Net Mortgage Rates and the
Stated Principal Balances of such
Mortgage Loans as of the preceding
Distribution Date (or, in the case of the
first Distribution Date, as of the Cut-off
Date) and (y) a fraction, the
numerator of which is 30 and the
denominator of which is the actual number of
days in the related Accrual Period.
NIM Notes:
The notes to be issued pursuant to the Indenture.
NIMs
Insurer: Any of the one or more insurers, if any, that is
guaranteeing certain payments under any NIM
Notes; provided, that upon the
payment in full of the NIM Notes, all
rights of the NIMs Insurer hereunder shall
terminate.
NIMs
Insurer Default: As defined in Section 10.12.
Non-Recoverable Advance: Any portion of an Advance previously made
or
proposed to be made by the Servicer that,
in the good faith judgment of the
Servicer, will not or, in the case of a
current delinquency, would not, be
ultimately recoverable by the Servicer from
the related Mortgagor, related
Liquidation Proceeds or otherwise with
respect to the related Mortgage Loan.
Non-Recoverable Servicing Advance: Any portion of a Servicing
Advance
previously made or proposed to be made by
the Servicer that, in the good faith
judgment of the Servicer, will not or, in
the case of a current Servicing
Advance, would not, be ultimately
recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or
otherwise with respect to the related
Mortgage Loan.
Non-Supported Interest Shortfall: As defined in Section 4.02.
Offered
Certificates: The Class A and Class M Certificates.
Officer's
Certificate: A certificate (1) signed by the Chairman of the
Board, the Vice Chairman of the Board, the
President, a vice president (however
denominated), an Assistant Vice President,
the
-31-
<PAGE>
Treasurer, the Secretary, or one of the
assistant treasurers or assistant
secretaries of the Depositor, the Master
Servicer, the Servicer or the
Securities Administrator (or any other
officer customarily performing functions
similar to those performed by any of the
above designated officers and also to
whom, with respect to a particular matter,
such matter is referred because of
such officer's knowledge of and familiarity
with a particular subject) or (2),
if provided for in this Agreement, signed
by a Servicing Officer, as the case
may be, and delivered to the Depositor, the
Master Servicer, the Servicer, the
Securities Administrator or the Trustee, as
the case may be, as required by this
Agreement.
One-Month
LIBOR: With respect to any Accrual Period, the rate determined
by the Securities Administrator on the
related Interest Determination Date on
the basis of (a) the offered rates for
one-month United States dollar deposits,
as such rates appear on Telerate page 3750,
as of 11:00 a.m. (London time) on
such Interest Determination Date or (b) if
such rate does not appear on Telerate
Page 3750 as of 11:00 a.m. (London time),
the offered rates of the Reference
Banks for one-month United States dollar
deposits, as such rates appear on the
Reuters Screen LIBO Page, as of 11:00 a.m.
(London time) on such Interest
Determination Date. If One-Month LIBOR is
determined pursuant to clause (b)
above, on each Interest Determination Date,
One-Month LIBOR for the related
Accrual Period will be established by the
Securities Administrator as follows:
(i) 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 0.03125%).
(ii) 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) One-Month LIBOR as determined on the previous Interest
Determination Date and (ii) the Reserve Interest Rate.
Opinion of
Counsel: A written opinion of counsel, who may be counsel for
the Depositor, the Master Servicer, the
Servicer or the Securities
Administrator, reasonably acceptable to
each addressee of such opinion;
provided, however, that with respect to
Section 6.04 or 10.01, or the
interpretation or application of the REMIC
Provisions, such counsel must (1) in
fact be independent of the Depositor, the
Master Servicer, the Servicer or the
Securities Administrator, (2) not have any
direct financial interest in the
Depositor, the Master Servicer, the
Servicer or the Securities Administrator or
in any affiliate of any such party and (3)
not be connected with the Depositor,
the Master Servicer, the Servicer or the
Securities Administrator as an officer,
employee, promoter, underwriter, trustee,
partner, director or person performing
similar functions.
Optional
Termination: The termination of the Trust Fund hereunder
pursuant
to clause (b) of Section 9.01 hereof.
Optional
Termination Amount: The amount received by the Securities
Administrator in connection with any
purchase of all of the Mortgage Loans and
REO Properties pursuant to Section
9.01(b).
Optional
Termination Price: On any date after the Initial Optional
Termination Date an amount equal to the sum
of (i) the then aggregate
outstanding Stated Principal Balance of the
Mortgage Loans (or, if such Mortgage
Loan is an REO Property, the fair market
value of such REO Property) plus
accrued interest thereon at the applicable
Mortgage Rate through the Due Date in
the month in which the Optional Termination
Price is to be distributed to the
Certificateholders; (ii) any unreimbursed
out-of-pocket costs and expenses owed
to the Trustee, the Master Servicer, the
Securities Administrator or the
Servicer, any
-32-
<PAGE>
unpaid or unreimbursed Servicing Fees and
all unreimbursed Advances and
Servicing Advances, in each case incurred
by such party in the performance of
its obligations and (iii) any unreimbursed
costs, penalties and/or damages
incurred by the Trust Fund in connection
with any violation relating to any of
the Mortgage Loans of any predatory or
abusive lending law.
OTS: The
Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore
executed and authenticated under
this Agreement except: (1) Certificates
theretofore canceled by the Securities
Administrator or delivered to the
Securities Administrator for cancellation; and
(2) Certificates in exchange for which or
in lieu of which other Certificates
have been executed by the Securities
Administrator and delivered by the
Securities Administrator pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage
Loan
with a Stated Principal Balance greater
than zero that was not the subject of a
Principal Prepayment in full, and that did
not become a Liquidated Loan, prior
to the end of the related Due Period.
Overcollateralization Amount: As of any date of determination, the
excess
of (1) the sum of (x) the Stated Principal
Balance of the Mortgage Loans over
(2) the Certificate Principal Balance of
the Certificates (other than the Class
P Certificates and the Class C
Certificates).
Ownership
Interest: As to any Certificate, any ownership 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.
Ownit:
Ownit Mortgage Solutions Inc., a California corporation, or its
successor in interest.
Pass-Through Rate: With respect to any Class of Certificates,
the
corresponding Pass-Through Rate for such
Class of Certificates.
Percentage
Interest: With respect to:
(i) any Class,
the percentage interest in the undivided beneficial
ownership interest evidenced by such Class which shall be
equal to the Certificate Principal Balance of such Class
divided by the aggregate Certificate Principal Balance of all
Classes; and
(ii) any Certificate,
the Percentage Interest evidenced thereby of
the related Class shall equal the percentage obtained by
dividing the Denomination of such Certificate by the aggregate
of the Denominations of all Certificates of such Class; except
that in the case of any Class P Certificates, the Percentage
Interest with respect to such Certificate shown on the face of
such Certificate.
Periodic
Rate Cap: As to each Adjustable Rate Mortgage Loan and the
related Mortgage Note, the provision
therein that limits permissible increases
and decreases in the Mortgage Rate on any
Adjustment Date.
Permitted
Activities: The primary activities of the Trust Fund created
pursuant to this Agreement which shall
be:
-33-
<PAGE>
(i)
holding Mortgage Loans transferred from the Depositor and
other assets of the
Trust Fund, including the Cap Contracts
and any credit enhancement and passive derivative financial
instruments that pertain to beneficial interests issued or
sold to parties other than the Depositor, its Affiliates, or
its agents;
(ii) issuing
Certificates and other interests in the assets of the
Trust Fund;
(iii) receiving
collections on the Mortgage Loans and the Cap
Contracts and making payments on such Certificates and
interests in accordance with the terms of this Agreement; and
(iv) engaging in
other activities that are necessary or incidental
to
accomplish these limited purposes, which activities cannot
be contrary to the status of the Trust Fund as a qualified
special purpose entity under existing accounting literature.
Permitted
Investments: At any time, any one or more of the following
obligations and securities:
(i)
obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and
credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving
the highest long-term debt rating of each Rating Agency
rating the Certificates;
(iii) commercial or
finance company paper, other than commercial or
finance company paper issued by the Depositor, the Securities
Administrator or any of its Affiliates, which is then
receiving the highest commercial or finance company paper
rating of each such Rating Agency;
(iv)
certificates of deposit, demand or time deposits, or bankers'
acceptances (other than banker's acceptances issued by the
Securities Administrator or any of its Affiliates) issued by
any depository institution or trust company incorporated
under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such
depository institution or trust company are then rated one of
the two highest long-term and the highest short-term ratings
of each such Rating Agency for such securities;
(v) demand
or time deposits or certificates of deposit issued by
any bank or trust company or savings institution to the
extent that such deposits are fully insured by the FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank,
insurance company or other corporation rated in the two
highest long-term or the highest short-term ratings of each
Rating Agency containing, at the time of the issuance of such
agreements, such terms and conditions as will not result in
the downgrading or withdrawal of the rating then assigned to
the Certificates by any such Rating Agency as evidenced by a
letter from each Rating Agency;
-34-
<PAGE>
(vii) repurchase
obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as
principal) described in clause (v) above;
(viii) securities (other than stripped bonds, stripped coupons
or
instruments sold at a purchase price in excess of 115% of the
face amount thereof) bearing interest or sold at a discount
issued by any corporation, other than the Securities
Administrator or any of its Affiliates, incorporated under
the laws of the United States or any state thereof which, at
the time of such investment, have one of the two highest long
term ratings of each Rating Agency;
(ix) interests
in any money market fund (including those managed
or advised by the Securities Administrator, the Trustee or
their respective affiliates) which at the date of acquisition
of the interests in such fund and throughout the time such
interests are held in such fund has the highest applicable
long term rating by each Rating Agency rating such fund; and
(x) short
term investment funds sponsored by any trust company or
national banking association incorporated under the laws of
the United States or any state thereof, other than the
Securities Administrator or any of its Affiliates, which on
the date of acquisition has been rated by each such Rating
Agency in their respective highest applicable rating
category;
provided, that no such instrument shall be
a Permitted Investment if such
instrument (i) evidences the right to
receive interest only payments with
respect to the obligations underlying such
instrument, (ii) is purchased at a
premium or above par or (iii) is purchased
at a deep discount; provided,
further, that no such instrument shall be a
Permitted Investment (A) if such
instrument evidences principal and interest
payments derived from obligations
underlying such instrument and the interest
payments with respect to such
instrument provide a yield to maturity of
greater than 120% of the yield to
maturity at par of such underlying
obligations, or (B) if it may be redeemed at
a price below the purchase price (the
foregoing clause (B) not to apply to
investments in units of money market funds
pursuant to clause (ix) above); and
provided, further, (I) that no amount
beneficially owned by any REMIC
(including, without limitation, any amounts
collected by the Servicer but not
yet deposited in the Collection Account)
may be invested in investments (other
than money market funds) treated as equity
interests for Federal income tax
purposes, unless the Servicer shall receive
an Opinion of Counsel, at the
expense of the party requesting that such
investment be made, to the effect that
such investment will not adversely affect
the status of the any REMIC provided
for herein as a REMIC under the Code or
result in imposition of a tax on the
Trust Fund or any REMIC provided for herein
and (II) each such investment must
be a "permitted investment" within the
meaning of Section 860G(a)(5) of the
Code. Permitted Investments that are
subject to prepayment or call may not be
purchased at a price in excess of par.
Permitted
Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or
any agency or instrumentality of any
of the foregoing, (ii) a foreign
government, International Organization or any
agency or instrumentality of either of the
foregoing, (iii) an organization
(except certain farmers' cooperatives
described in Section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed
by Section 511 of the Code on unrelated
business taxable income) on any excess
inclusions (as defined in Section
860E(c)(1) of the Code) with respect to the
Class R or Class R-X Certificate, (iv)
rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the
Code, and (v) a Person that is not a
citizen or resident of the United States, a
corporation or partnership (or other
entity treated as a corporation or
partnership for United States federal income
tax purposes) created or organized in or
under the laws of the United States
-35-
<PAGE>
or any State thereof or the District of
Columbia or an estate whose income from
sources without the United States is
includable in gross income for United
States federal income tax purposes
regardless of its connection with the conduct
of a trade or business within the United
States, 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 authority
to control all substantial decisions of the
trust, unless, in the case of this
clause (v), such Person has furnished the
transferor and the Securities
Administrator with a duly completed
Internal Revenue Service Form W-8ECI or
applicable successor form. The terms
"United States," "State" and "International
Organization" shall have the meanings set
forth in Section 7701 of the Code. A
corporation will not be treated as an
instrumentality of the United States or of
any State thereof for these purposes if all
of its activities are subject to tax
and, with the exception of the Federal Home
Loan Mortgage Corporation, a
majority of its board of directors is not
selected by such government unit.
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.
Pool
Stated Principal Balance: As to any Distribution Date, the
aggregate
of the Stated Principal Balances, as of
such Distribution Date, of the Mortgage
Loans that were Outstanding Mortgage Loans
as of such date.
Preference
Claim: The meaning set forth in Section 4.04(j) hereof.
Prepayment
Assumption: A rate or rates of prepayment, as described in the
Prospectus Supplement in the definition of
"Modeling Assumptions," relating to
the Offered Certificates.
Prepayment
Charges: Any prepayment fees, premiums or charges to be paid by
the Mortgagor on a Mortgage Loan pursuant
to the terms of the related Mortgage
Note or Mortgage, as applicable, as
identified on the Mortgage Loan Schedule.
Prepayment
Interest Excesses: With respect to any Servicer Remittance
Date, for each Mortgage Loan that was the
subject of a Principal Prepayment in
full during the portion of the related
Prepayment Period occurring between the
first day of the calendar month in which
such Servicer Remittance Date occurs
and the last day of the related Prepayment
Period, an amount equal to interest
(to the extent received) at the applicable
Net Mortgage Rate on the amount of
such Principal Prepayment for the number of
days commencing on the first day of
the calendar month in which such Servicer
Remittance Date occurs and ending on
the date on which such Principal Prepayment
is so applied.
Prepayment
Interest Shortfall: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of
a Principal Prepayment in full (other
than a Principal Prepayment in full
resulting from the purchase of a Mortgage
Loan pursuant to Section 2.02, 2.03 or 9.01
hereof), the amount, if any, by
which (i) one month's interest at the
applicable Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as
of the preceding Distribution Date or
in the case of a partial Principal
Prepayment, on the amount of such prepayment,
exceeds (ii) the amount of interest paid or
collected in connection with such
Principal Prepayment.
Prepayment
Period: As to any Distribution Date, the period beginning with
the opening of business on the 15th day of
the calendar month preceding the
month in which such Distribution Date
occurs (or in the case of the first
Distribution Date, beginning with the
opening of business on the Cut-off Date)
and ending on the close of business on the
14th day of the month in which such
Distribution Date occurs.
-36-
<PAGE>
Principal Distribution
Amount: With respect to each Distribution Date, the
sum of (i) the Principal Funds for such
Distribution Date and (ii) any Extra
Principal Distribution Amount for such
Distribution Date.
Principal
Funds: With respect to the Mortgage Loans and any Distribution
Date, the sum, without duplication, of (1)
all scheduled principal due during
the related Due Period and received before
the related Servicer Remittance Date
or advanced on or before the related
Servicer Remittance Date, (2) Principal
Prepayments collected in the related
Prepayment Period, (3) the Stated Principal
Balance of each Mortgage Loan that was
purchased by the Depositor or the
Servicer during the related Prepayment
Period or, in the case of a purchase
pursuant to Section 9.01, on any Business
Day prior to such Distribution Date,
(4) the amount, if any, by which the
aggregate unpaid principal balance of any
Replacement Mortgage Loan is less than the
aggregate unpaid principal of the
related Deleted Mortgage Loans delivered by
the Seller in connection with a
substitution of a Mortgage Loan pursuant to
Section 2.03(c), (5) all Liquidation
Proceeds collected during the related
Prepayment Period (to the extent such
Liquidation Proceeds related to principal),
(6) all Subsequent Recoveries
received during the related Due Period, and
(7) all other collections and
recoveries in respect of principal during
the related Prepayment Period less (A)
all Non-Recoverable Advances relating to
principal with respect to the Mortgage
Loans and (B) other amounts reimbursable to
the Servicer, the Master Servicer,
the Securities Administrator and the
Trustee pursuant to this Agreement and
allocable to principal.
Principal
Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a
Mortgage Loan (including Mortgage Loans
purchased or repurchased under Sections
2.02, 2.03, 3.12 and 9.01 hereof) that
is received or recovered in advance of its
scheduled Due Date and is not
accompanied by an amount as to interest
representing scheduled interest due on
any date or dates in any month or months
subsequent to the month of prepayment.
Partial Principal Prepayments shall be
applied by the Servicer in accordance
with the terms of the related Mortgage
Note.
Prospectus
Supplement: The Prospectus Supplement dated July 12, 2005
relating to the public offering of the
Offered Certificates.
PUD: A
Planned Unit Development.
Purchase
Price: With respect to any Mortgage Loan required to be
repurchased by the Seller or the Transferor
pursuant to Section 2.02 or 2.03
hereof or purchased by the Servicer
pursuant to Section 3.12(c) hereof, an
amount equal to the sum of (i) 100% of the
unpaid principal balance of the
Mortgage Loan as of the date of such
purchase together with any unreimbursed
Servicing Advances, (ii) accrued interest
on such unpaid principal balance at
the applicable Mortgage Rate from (a) the
date through which interest was last
paid by the Mortgagor to (b) the Due Date
in the month in which the Purchase
Price is to be distributed to
Certificateholders and (iii) any unreimbursed
costs, penalties and/or damages incurred by
the Trust Fund (or the Trustee on
behalf of the Trust Fund) in connection
with any violation relating to such
Mortgage Loan of any predatory or abusive
lending law. With respect to any REO
Property purchased by the Servicer pursuant
to Section 3.12(c) hereof, an amount
equal to the fair market value of such REO
Property, as determined in good faith
by the Servicer
Rating
Agency: Either S&P or Moody's. If any such organization or
its
successor is no longer in existence,
"Rating Agency" shall be a nationally
recognized statistical rating organization,
or other comparable Person,
designated by the Depositor, notice of
which designation shall be given to the
Trustee. References herein to a given
rating category of a Rating Agency shall
mean such rating category without giving
effect to any modifiers.
-37-
<PAGE>
Realized
Loss: With respect to (1) a Liquidated Loan, the amount, if
any,
by which the Stated Principal Balance and
accrued interest thereon at the Net
Mortgage Rate exceeds the amount actually
recovered by the Servicer with respect
thereto (net of reimbursement of Advances
and Servicing Advances) at the time
such Mortgage Loan became a Liquidated Loan
or (2) a Mortgage Loan which is not
a Liquidated Loan, any amount of principal
that the Mortgagor is no longer
legally required to pay (except for the
extinguishment of debt that results from
the exercise of remedies due to default by
the Mortgagor).
Record
Date: With respect to any Distribution Date, the close of
business
on the last Business Day of the month
preceding the month in which the
applicable Distribution Date occurs (or, in
the case of the first Distribution
Date, the Closing Date).
Reference
Banks: Barclays Bank PLC, JPMorgan Chase Bank, N.A., Citibank,
N.A., Wells Fargo Bank, N.A. and NatWest,
N.A.; provided that if any of the
foregoing banks are not suitable to serve
as a Reference Bank, then any leading
banks selected by the Securities
Administrator which are engaged in transactions
in Eurodollar deposits in the international
Eurocurrency market (i) with an
established place of business in London,
England, (ii) whose quotations appear
on the Reuters Screen LIBO Page on the
relevant Interest Determination Date and
(iii) which have been designated as such by
the Securities Administrator.
Regular
Certificate: Any one of the Class A, Class M and Class B
Certificates.
Relief
Act: The Servicemembers Civil Relief Act or any similar state
or
local law.
Relief Act
Shortfall: With respect to any Distribution Date and any
Mortgage Loan, any reduction in the amount
of interest or principal 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. References herein
to "the REMICs" or "a REMIC" shall
mean any of (or, as the context requires,
all of) the Lower Tier REMIC, the
Upper Tier REMIC, the M2 REMIC, the M3
REMIC, the B1 REMIC, the B2 REMIC, the B3
REMIC and the C REMIC.
REMIC
Pass-Through Rate: The Class A-1 Available Funds Cap (in the case
of
a Class included in Certificate Group One),
the Class A-2 Available Funds Cap
(in the case of a Class included in
Certificate Group Two) or the Weighted
Average Available Funds Cap (in the case of
the Class A-3 and the Subordinate
Certificates).
REMIC
Provisions: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits,
which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the
Code, and related provisions, and
proposed, temporary and final regulations
and published rulings, notices and
announcements promulgated thereunder, as
the foregoing may be in effect from
time to time as well as provisions of
applicable state laws.
REMIC
Regular Interests: (i) any of the rights under any of the
Certificates (other than the Class M-2
Certificates, the Class M-3 Certificates,
the Class B-1 Certificates, the Class B-2
Certificates, the Class B-3
Certificates, the Class P Certificates, the
Class R Certificate, the Class R-X
Certificate and the Class C Certificates)
other than the rights in interest rate
cap contracts described in Section 2.07,
(ii) the Class UTM Interests and the
Class UTB Interests and (iii) the
Uncertificated Class C Interest.
Remittance
Report: As defined in Section 4.04(j) hereof.
-38-
<PAGE>
REO
Property: A Mortgaged Property acquired by the Servicer, on behalf
of
the Trustee for the benefit of the
Certificateholders, through foreclosure or
deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan substituted by the
Depositor
for a Deleted Mortgage Loan, which must, on
the date of such substitution, as
confirmed in a Request for Release,
substantially in the form of Exhibit I (1)
have a Stated Principal Balance, after
deduction of the principal portion of the
Scheduled Payment due in the month of
substitution, not in excess of, and not
less than 90% of the Stated Principal
Balance of the Deleted Mortgage Loan; (2)
with respect to any Fixed Rate Mortgage
Loan, have a Mortgage Rate not less than
or no more than 1% per annum higher than
the Mortgage Rate of the Deleted
Mortgage Loan and, with respect to any
Adjustable Rate Mortgage Loan: (A) have a
Maximum Mortgage Rate no more than 1% per
annum higher or lower than the Maximum
Mortgage Rate of the Deleted Mortgage Loan;
(B) have a Minimum Mortgage Rate no
more than 1% per annum higher or lower than
the Minimum Mortgage Rate of the
Deleted Mortgage Loan; (C) have the same
index and Periodic Rate Cap as that of
the Deleted Mortgage Loan and a Gross
Margin not more than 1% per annum higher
or lower than that of the Deleted Mortgage
Loan; (D) not permit conversion of
the related Mortgage Rate to a fixed
Mortgage Rate and (F) currently be accruing
interest at a rate not more than 1% per
annum higher or lower than that of the
Deleted Mortgage Loan; (3) have a similar
or higher FICO score or credit grade
than that of the Deleted Mortgage Loan; (4)
have a Loan-to-Value Ratio (or
Combined Loan-to-Value Ratio, in the case
of the Mortgage Loans in a second lien
position) no higher than that of the
Deleted Mortgage Loan; (5) have a remaining
term to maturity no greater than (and not
more than one year less than) that of
the Deleted Mortgage Loan; (6) provide for
a Prepayment Charge on terms
substantially similar to those of the
Prepayment Charge, if any, of the Deleted
Mortgage Loan; (7) have the same lien
priority as the Deleted Mortgage Loan; (8)
constitute the same occupancy type as the
Deleted Mortgage Loan; and (9) comply
with each representation and warranty set
forth in Section 2.03 hereof.
Request
for Release: The Request for Release of Documents submitted by
the
Servicer to the Trustee (or its custodian),
substantially in the form of Exhibit
I hereto.
Required
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be
maintained from time to time under this
Agreement.
Required
Percentage: As of any Distribution Date following the Stepdown
Date, the quotient of (1) the excess of (A)
the Stated Principal Balances of the
Mortgage Loans as of such Distribution
Date, over (B) the Certificate Principal
Balance of the most senior Class of
Certificates outstanding as of such
Distribution Date, prior to giving effect
to distributions to be made on such
Distribution Date and (2) the Stated
Principal Balance of the Mortgage Loans as
of such Distribution Date.
Reserve
Interest Rate: With respect to any Interest Determination Date,
the rate per annum that the Securities
Administrator determines to be (1) the
arithmetic mean (rounded upwards if
necessary to the nearest whole multiple of
0.03125%) of the one-month United States
dollar lending rates which New York
City banks selected by the Securities
Administrator are quoting on the relevant
Interest Determination Date to the
principal London offices of leading banks in
the London interbank market or (2) in the
event that the Securities
Administrator can determine no such
arithmetic mean, the lowest one-month United
States dollar lending rate which New York
City banks selected by the Securities
Administrator are quoting on such Interest
Determination Date to leading
European banks.
Residual
Excess Interest Amount: With respect to any Distribution Date,
the excess of (x) 0.05% of the Monthly
Excess Interest Amount for such
Distribution Date and all prior
Distribution Dates over
-39-
<PAGE>
(y) all payments previously made to the
Class R Certificate in respect of the
Residual Excess Interest Amount.
Residual
Interest: An interest in the Upper Tier REMIC that is entitled
to
all distributions of principal and interest
on the Class R Certificate other
than distributions in respect of the Class
LTR Interest and distributions on the
Class R Certificate in respect of Excess
Interest.
Responsible Officer: When used with respect to the Securities
Administrator or the Servicer, any officer
of the Securities Administrator or
the Servicer with direct responsibility for
the administration of this Agreement
and any other officer to whom, with respect
to a particular matter, such matter
is referred because of such officer's
knowledge of and familiarity with the
particular subject. When used with respect
to the Trustee, any officer of the
Trustee with direct responsibility for the
administration of this Agreement and
also means any other officer to whom, with
respect to a particular matter, such
matter is referred because of such
officer's knowledge of and familiarity with
the particular subject.
Reuters
Screen LIBO Page: The display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or
such other page as may replace such LIBO
page on that service for the purpose of
displaying London interbank offered
rates of major banks.
S&P:
Standard & Poor's, a division of The McGraw-Hill Companies,
Inc., or
any successor in interest.
Sale
Agreement: The Mortgage Loan Sale and Assignment Agreement dated
as
of April 1, 2005 between the Depositor and
the Seller.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due
on
any Due Date allocable to principal and/or
interest on such Mortgage Loan.
Section
302 Requirements: Any rules or regulations promulgated pursuant
to
the Sarbanes-Oxley Act of 2002 (as such may
be amended from time to time).
Securities
Act: The Securities Act of 1933, as amended.
Securities
Administrator: Wells Fargo Bank, N.A., a national banking
association, or any successor in
interest.
Seller:
Merrill Lynch Mortgage Lending, Inc., a Delaware corporation,
or
its successor in interest.
Servicer:
Litton Loan Servicing LP, a Delaware limited partnership, or
its
successor in interest.
Servicer
Advance Date: As to any Distribution Date, the related Servicer
Remittance Date.
Servicer
Remittance Date: With respect to any Distribution Date, the
10th
day (or if such day is not a Business Day,
the next succeeding Business Day) of
the month in which the related Distribution
Date occurs.
Servicer
Trigger Event: As defined in Section 7.02 hereof.
Servicer's
Assignee: As defined in Section 10.14(a).
-40-
<PAGE>
Servicing Advances:
All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the
performance of the Servicer's
servicing obligations hereunder, including,
but not limited to, the cost of (1)
the preservation, inspection, restoration
and protection of a Mortgaged Property
(or Underlying Mortgaged Property, in the
case of a Co-op Loan), including
without limitation advances in respect of
real estate taxes and assessments, (2)
any collection, enforcement or judicial
proceedings, including without
limitation foreclosures, collections and
liquidations, (3) the conservation,
management, sale and liquidation of any REO
Property, (4) executing and
recording instruments of satisfaction,
deeds of reconveyance or Assignments of
Mortgage to the extent not otherwise
recovered from the related Mortgages or
payable under this Agreement, (5)
correcting errors of prior servicers; costs
and expenses charged to the Servicer by the
Trustee or Securities Administrator;
tax tracking; title research; flood
certifications; lender paid mortgage
insurance, (6) obtaining or correcting any
legal documentation required to be
included in the Mortgage Files and
reasonably necessary for the Servicer to
perform its obligations under this
Agreement and (7) compliance with the
obligations under Sections 3.01 and 3.10;
provided that such amounts are
required to be advanced only to the extent
such advances constitute
"unanticipated expenses" within the meaning
of Treasury Regulation Section
1.860G-1(b)(3)(ii).
Servicing Fee: As to
each Mortgage Loan and any Distribution Date, an
amount equal to the product of (x)
one-twelfth of the Servicing Fee Rate and (y)
the Stated Principal Balance of such
Mortgage Loan as of the preceding
Distribution Date or, in the event of any
payment of interest that accompanies a
Principal Prepayment in full made by the
Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of
such Mortgage Loan as of the
preceding Distribution Date for the period
covered by such payment of interest.
Servicing
Fee Rate: 0.50% per annum.
Servicing
Officer: 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
to the Master Servicer, the Securities
Administrator and the Trustee by the
Servicer on the Closing Date pursuant to
this Agreement, as such lists may from time
to time be amended.
Servicing
Rights Pledgee: One or more lenders, selected by the Servicer,
to which the Servicer may pledge and assign
all of its right, title and interest
in, to and under this Agreement, including
JPMorgan Chase Bank, N.A., as the
representative of certain lenders.
Servicing
Transfer Costs: In the event that the Servicer does not
reimburse the Master Servicer under this
Agreement, all costs associated with
the transfer of servicing from the
predecessor Servicer, including, without
limitation, any costs or expenses
associated with the termination of the
predecessor servicer, the appointment of a
successor servicer, the complete
transfer of all servicing data and the
manipulation, completion or correction of
such servicing data as may be required by
the Master Servicer or any successor
servicer to correct any errors or
insufficiencies in the servicing data or
otherwise to enable the Master Servicer or
successor servicer to service the
Mortgage Loans properly and
effectively.
SFAS 140:
Statement of Financial Accounting Standard No. 140, Accounting
for Transfers and Servicing of Financial
Assets and Extinguishments of
Liabilities dated September 2000, published
by the Financial Accounting
Standards Board of the Financial Accounting
Foundation.
Startup
Day: As defined in Section 2.07 hereof.
Stated Principal
Balance: With respect to any Mortgage Loan or related REO
Property (1) as of the Cut-off Date, the
Cut-off Date Principal Balance thereof,
and (2) as of any Distribution Date, such
Cut-off Date Principal Balance minus
the sum of (A) the principal portion of the
Scheduled Payments (x)
-41-
<PAGE>
due with respect to such Mortgage Loan
during each Due Period ending prior to
such Distribution Date and (y) that were
received by the Servicer as of the
close of business on the Determination Date
related to such Distribution Date or
with respect to which Advances were made on
the Servicer Advance Date prior to
such Distribution Date and (B) all
Principal Prepayments with respect to such
Mortgage Loan received on or prior to the
last day of the related Prepayment
Period, and all Liquidation Proceeds to the
extent applied by the Servicer as
recoveries of principal in accordance with
Section 3.12 with respect to such
Mortgage Loan, that were received by the
Servicer as of the close of business on
the last day of the related Due Period.
Notwithstanding the foregoing, the
Stated Principal Balance of a Liquidated
Loan shall be deemed to be zero.
Stepdown
Date: The later to occur of (1) the Distribution Date in July
2008 or (2) the first Distribution Date on
which (A) the Class A Certificate
Principal Balance (reduced by the Principal
Funds with respect to such
Distribution Date) is less than or equal to
(B) 67.30% of the Stated Principal
Balances of the Mortgage Loans as of such
Distribution Date.
Stepdown
Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution
Date set forth in the following
table:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN STEPDOWN
REQUIRED LOSS PERCENTAGE
------------------------------
---------------------------------
<S>
<C>
July 2008 -- June 2009
2.10% with respect to July 2008, plus
an additional 1/12th of 1.75% for each
month thereafter
July 2009 -- June 2010
3.85% with respect to July 2009, plus
an additional 1/12th of 1.50% for each
month thereafter
July 2010 -- June 2011
5.35% with respect to July 2010, plus
an additional 1/12th of 0.50% for each
month thereafter
July 2011 and thereafter
5.85%
</TABLE>
Stepdown
Trigger Event: With respect to the Certificates on or after the
Stepdown Date, a Distribution Date on which
(1) the quotient of (A) the
aggregate Stated Principal Balance of all
Mortgage Loans which are 60 or more
days Delinquent measured on a rolling three
month basis (including, for the
purposes of this calculation, Mortgage
Loans in foreclosure and REO Properties
and Mortgage Loans with respect to which
the applicable Mortgagor is in
bankruptcy) and (B) the Stated Principal
Balance of the Mortgage Loans as of the
preceding Servicer Remittance Date, equals
or exceeds the product of (i) 46.00%
and (ii) the Required Percentage or (2) the
quotient (expressed as a percentage)
of (A) the aggregate Realized Losses
incurred from the Cut-off Date through the
last day of the calendar month preceding
such Distribution Date and (B) the
aggregate principal balance of the Mortgage
Loans as of the Cut-off Date exceeds
the Stepdown Required Loss Percentage.
Subordinate Certificates: Each Class of the Class M and Class B
Certificates.
Subsequent
Recovery: Any amount received on a Mortgage Loan (net of
amounts reimbursed to the Servicer related
to such Mortgage Loan) subsequent to
such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Subservicing Agreement: As defined in Section 3.02(a).
-42-
<PAGE>
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant
to Section 2.03(c).
Tax Matters
Person: The Person designated as "tax matters person" in the
manner provided under Treasury regulation
Section 1.860F-4(d) and Treasury
regulation Section 301.6231(a)(7)-1.
Transfer:
Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Transfer
Agreement: The Master Mortgage Loan Purchase and Interim
Servicing Agreement dated as of March 1,
2004, as amended, between Merrill Lynch
Mortgage Capital Inc., as purchaser and
Ownit, as seller and interim servicer,
as supplemented by the Bring Down
Letter.
Transferor: Ownit.
Trust
Fund: The corpus of the trust (the "Ownit Mortgage Loan Trust,
Series 2005-3") created hereunder
consisting of (i) the Mortgage Loans and all
interest and principal received on or with
respect thereto on and after the
Cut-off Date to the extent not applied in
computing the Cut-off Date Principal
Balance thereof, exclusive of interest not
required to be deposited in the
Collection Account; (ii) the Collection
Account, the Certificate Account and all
amounts deposited therein pursuant to the
applicable provisions of this
Agreement; (iii) property that secured a
Mortgage Loan and has been acquired by
foreclosure, deed in lieu of foreclosure or
otherwise; (iv) the mortgagee's
rights under the Insurance Policies with
respect to the Mortgage Loans; (v) all
proceeds of the conversion, voluntary or
involuntary, of any of the foregoing
into cash or other liquid property; and
(vi) the Cap Contracts and Cap Contract
Account.
Trustee: HSBC Bank
USA, National Association, a national banking
association, not in its individual
capacity, but solely in its capacity as
trustee for the benefit of the
Certificateholders under this Agreement, and any
successor thereto, and any corporation or
national banking association resulting
from or surviving any consolidation or
merger to which it or its successors may
be a party and any successor trustee as may
from time to time be serving as
successor trustee hereunder.
Uncertificated Class C Interest: An uncertificated interest having
(i) the
same rights to payments as the Class C
Certificates, other than the rights to
payments of amounts with respect to the Cap
Contracts, and (ii) the rights to
the payments treated as distributed to the
Class C Certificates under Section
2.07(d), provided, however, that such
interest shall have no obligation to make
any payments treated as paid by the Class C
Certificates pursuant to interest
rate cap agreements under Section
2.07(d).
Underlying
Mortgaged Property: With respect to each Co-op Loan, the
underlying real property owned by the
related residential cooperative housing
corporation.
Unpaid
Realized Loss Amount: The Class M-1 Unpaid Realized Loss
Amount,
Class M-2 Unpaid Realized Loss Amount,
Class M-3 Unpaid Realized Loss Amount,
Class, Class B-1 Unpaid Realized Loss
Amount, Class B-2 Unpaid Realized Loss
Amount, Class B-3 Unpaid Realized Loss
Amount, and Class C Unpaid Realized Loss
Amount, collectively.
Upper
Collar: Any of the Class A-1 Upper Collar, the Class A-2 Upper
Collar or the Class A-3/Subordinate
Certificate Upper Collar.
Upper Tier
REMIC: As described in the Preliminary Statement and Section
2.07.
-43-
<PAGE>
USAP
Report: A report in compliance with the Uniform Single
Attestation
Program for Mortgage Bankers delivered in
accordance with Section 3.18.
Voting
Rights: The portion of the voting rights of all the
Certificates
that is allocated to any of the
Certificates for purposes of the voting
provisions hereunder. Voting Rights
allocated to each Class of Certificates
shall be allocated as follows: (1) 98% to
the Class A, Class M and Class B
Certificates, with the allocation among
such Certificates to be in proportion to
the Certificate Principal Balance of each
Class relative to the Certificate
Principal Balance of all other Classes and
(2) each Class of the Class C and
Class P will be allocated 1% of the Voting
Rights. Voting Rights will be
allocated among the Certificates of each
such Class in accordance with their
respective Percentage Interests.
Weighted
Average Available Funds Cap: With respect to a Distribution
Date,
the per annum rate equal to the weighted
average (weighted in proportion to the
results of subtracting the current
Certificate Principal Balance of the Class
A-1 and Class R Certificates, in the case
of Group One, or the Class A-2
Certificates, in the case of Group Two,
from the aggregate Stated Principal
Balance of the Mortgage Loans in each
Mortgage Group as of the immediately
preceding Distribution Date (or, in the
case of the first Distribution Date, as
of the Cut-off Date)) of the Class A-1
Available Funds Cap and the Class A-2
Available Funds Cap.
Weighted
Average Maximum Rate Cap: With respect to a Distribution Date,
the per annum rate equal to the weighted
average (weighted in proportion to the
results of subtracting from the aggregate
Stated Principal Balance of the
Mortgage Loans in each Mortgage Group as of
the immediately preceding
Distribution Date (or, in the case of the
first Distribution Date, as of the
Cut-off Date) the current Certificate
Principal Balance of the Class A-1 and
Class R Certificates, in the case of Group
One, or the Class A-2 Certificates,
in the case of Group Two) of the Class A-1
Maximum Rate Cap and the Class A-2
Maximum Rate Cap.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section
2.01. Conveyance of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof,
does
hereby sell, transfer, assign, set over and
convey to the Trustee without
recourse all the right, title and interest
of the Depositor in and to the assets
of the Trust Fund. Such assignment includes
all interest and principal received
on or with respect to the Mortgage Loans,
on or after the Cut-off Date (other
than Scheduled Payments due on the Mortgage
Loans on or before the Cut-off
Date).
It is
agreed and understood by the Depositor, the Master Servicer,
the
Servicer, the Securities Administrator and
the Trustee that it is not intended
that any Mortgage Loan be included in the
Trust that is, without limitation, a
"High-Cost Home Loan" as defined by the
Home Ownership and Equity Protection Act
of 1994 or any other applicable
anti-predatory lending laws, including but not
limited to (i) a "High-Cost Home Loan" as
defined in the New Jersey Home
Ownership Act effective November 27, 2003;
(ii) a "High-Cost Home Loan" as
defined in the New Mexico Home Loan
Protection Act effective January 1, 2004; or
(iii) a "High-Cost Home Loan" as defined in
the Massachusetts Predatory Home
Loan Practices Act effective November 7,
2004; (iv) a "High-Cost Home Loan" as
defined by the Indiana High Cost Home Loan
Law effective January 1, 2005 or (v)
a "High-Cost Home Loan" as defined by the
Illinois High-Risk Home Loan Act
effective January 1, 2004.
-44-
<PAGE>
(i) In
connection with such assignment, the Depositor does hereby
deliver
to, and deposit with, the Trustee or its
Custodian, the following documents or
instruments with respect to each Mortgage
Loan so assigned that is not a Co-op
Loan:
(A) The original Mortgage Note
endorsed in blank or, "Pay to the
order of
HSBC Bank USA, National Association, as trustee, without
recourse"
together with all riders thereto. The Mortgage Note shall
include
all intervening endorsements showing a complete chain of the
title
from the
originator to [__________________];
(B) Except as
provided below and for each Mortgage Loan that is
not a MERS
Loan, the original recorded Mortgage with all riders thereto,
with
evidence of recording thereon, or, if the original Mortgage has
not
yet been
returned from the recording office, a copy of the original
Mortgage
certified by the Transferor to be true copy of the original of
the
Mortgage that has been delivered for recording in the
appropriate
recording
office of the jurisdiction in which the Mortgaged Property is
located
and in the case of each MERS Loan, the original Mortgage,
noting
the
presence of the MIN of the Loan and either language indicating
that
the
Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM
Loan
at
origination, the original Mortgage and the assignment thereof to
MERS,
with
evidence of recording indicated thereon, or a copy of the
Mortgage
certified by the
public recording office in which such Mortgage has been
recorded;
(C) In the case
of each Mortgage Loan that is not a MERS Loan, the
original
Assignment of each Mortgage endorsed either in blank or, to
"HSBC
Bank USA,
National Association, as trustee;"
(D) The original
policy of title insurance (or a preliminary title
report,
commitment or binder if the original title insurance policy has
not been
received from the title insurance company);
(E) Originals of
any intervening assignments of the Mortgage, with
evidence
of recording thereon or, if the original intervening assignment
has not
yet been returned from the recording office, a copy of such
assignment
certified to be a true copy of the original of the assignment
which has
been sent for recording in the appropriate jurisdiction in
which
the
Mortgaged Property is located; and
(F) Originals of
all assumption and modification agreements, if
any.
(ii) In
connection with such assignment, the Depositor does hereby
deliver
to, and deposit with, the Trustee the
following documents or instruments with
respect to each Mortgage Loan so assigned
that is a Co-op Loan:
(A) (i) The
original Mortgage Note (or a lost note affidavit
(including
a copy of the original Mortgage Note)) or (ii) original
consolidation, extension and modification agreement (or a lost
note
affidavit
(including a copy of the original consolidation, extension and
modification agreement)), in either case endorsed either in blank
or, "Pay
to the
order of HSBC Bank, USA, National Association as trustee,
without
recourse;"
(B) The original
Mortgage entered into by the Mortgagor with
respect to
such Co-Op Loan;
(C) The original
Assignment of Mortgage endorsed either in blank
or to
"HSBC Bank USA, National Association, as trustee;"
-45-
<PAGE>
(D) Original
assignments of Mortgage showing a complete chain of
assignment
from the originator of the related Co-Op Loan to the last
endorsee
on the Mortgage Note;
(E) Original
Form UCC-1 and any continuation statements with
evidence
of filing thereon entered into by the Mortgagor with respect to
such Co-Op
Loan (or a recorded copy thereof);
(F) Form UCC-3
(or copy thereof) by the Transferor or its agent
assigning
the security interest covered by such Form UCC-1 to "HSBC Bank,
USA,
National Association., as trustee," together with all Forms UCC-3
(or
copies
thereof) showing a complete chain of assignment from the
originator
of the
related Co-op Loan to the Transferor, with evidence of
recording
thereon;
(G) Original
stock certificate representing the stock allocated to
the
related dwelling unit in the related residential cooperative
housing
corporation and pledged by the related Mortgagor to the originator
of such
Co-op Loan
with a stock power in blank attached;
(H) Original
proprietary lease;
(I) Original
assignment of proprietary lease or a copy thereof, to
the
Trustee or in blank, and all intervening assignments thereof;
(J) Original
recognition agreement or a copy thereof of the
interests
of the mortgagee with respect to the Co-op Loan by the
residential cooperative housing corporation, the stock of which
was
pledged by
the related Mortgagor to the originator of such Co-op Loan; and
(K) Originals of
any assumption, consolidation or modification
agreements
relating to any of the items specified in (A) through (F) above
with respect to such Co-op
Loan.
If in
connection with any Mortgage Loan that is not a Co-op Loan, the
Depositor cannot deliver the Mortgage,
Assignments of Mortgage or assumption,
consolidation or modification, as the case
may be, with evidence of recording
thereon, if applicable, concurrently with
the execution and delivery of this
Agreement solely because of a delay caused
by the public recording office where
such Mortgage, Assignments of Mortgage or
assumption, consolidation or
modification, as the case may be, has been
delivered for recordation, the
Depositor shall deliver or cause to be
delivered to the Trustee written notice
stating that such Mortgage or assumption,
consolidation or modification, as the
case may be, has been delivered to the
appropriate public recording office for
recordation. Thereafter, the Depositor
shall deliver or cause to be delivered to
the Trustee such Mortgage, Assignments of
Mortgage or assumption, consolidation
or modification, as the case may be, with
evidence of recording indicated
thereon, if applicable, upon receipt
thereof from the public recording office.
To the extent any required endorsement is
not contained on a Mortgage Note or an
Assignment of Mortgage, the Depositor shall
make or cause such endorsement to be
made.
With
respect to any Mortgage Loan that is not a Co-op Loan, none of
the
Depositor, the Master Servicer, the
Servicer, the Securities Administrator or
the Trustee shall be obligated to cause to
be recorded the Assignment of
Mortgage referred to in this Section 2.01.
With respect to any Co-op Loan, none
of the Depositor, the Servicer or the
Trustee shall be obligated to cause to be
filed the Form UCC-3 referred to in this
Section 2.01. In the event that any
Assignment of Mortgage referred to in this
Section 2.01 is not recorded or is
improperly recorded, the Servicer and the
Trustee shall have no liability for
any failure to receive or act on notices
related to such Assignment of Mortgage.
-46-
<PAGE>
The ownership of each
Mortgage Note, the Mortgage and the contents of the
related Mortgage File is vested in the
Trustee on behalf of the
Certificateholders. None of the Depositor,
the Master Servicer, the Servicer or
the Securities Administrator shall take any
action inconsistent with such
ownership and shall not claim any ownership
interest therein. The Depositor, the
Master Servicer, the Servicer and
Securities Administrator shall respond to any
third party inquiries with respect to
ownership of the Mortgage Loans by stating
that such ownership is held by the Trustee
on behalf of the Certificateholders.
Mortgage documents relating to the Mortgage
Loans not delivered to the Trustee
are and shall be held in trust by the
Servicer, for the benefit of the Trustee
as the owner thereof, and the Servicer's
possession of the contents of each
Mortgage File so retained is for the sole
purpose of servicing the related
Mortgage Loan, and such retention and
possession by the Servicer is in a
custodial capacity only. The Depositor
agrees to take no action inconsistent
with the Trustee's ownership of the
Mortgage Loans, to promptly indicate to all
inquiring parties that the Mortgage Loans
have been sold and to claim no
ownership interest in the Mortgage
Loans.
It is the
intention of this Agreement that the conveyance of the
Depositor's right, title and interest in
and to the Trust Fund pursuant to this
Agreement shall constitute a purchase and
sale and not a loan. If a conveyance
of Mortgage Loans from the Seller to the
Depositor is characterized as a pledge
and not a sale, then the Depositor shall be
deemed to have transferred to the
Trustee all of the Depositor's right, title
and interest in, to and under the
obligations of the Seller deemed to be
secured by said pledge; and it is the
intention of this Agreement that the
Depositor shall also be deemed to have
granted to the Trustee a first priority
security interest in all of the
Depositor's right, title, and interest in,
to and under the obligations of the
Seller to the Depositor deemed to be
secured by said pledge and that the Trustee
shall be deemed to be an independent
custodian for purposes of perfection of the
security interest granted to the Depositor.
If the conveyance of the Mortgage
Loans from the Depositor to the Trustee is
characterized as a pledge, it is the
intention of this Agreement that this
Agreement shall constitute a security
agreement under applicable law, and that
the Depositor shall be deemed to have
granted to the Trustee a first priority
security interest in all of the
Depositor's right, title and interest in,
to and under the Mortgage Loans, all
payments of principal of or interest on
such Mortgage Loans, all other rights
relating to and payments made in respect of
the Trust Fund, and all proceeds of
any thereof. If the trust created by this
Agreement terminates prior to the
satisfaction of the claims of any Person in
any Certificates, the security
interest created hereby shall continue in
full force and effect and the Trustee
shall be deemed to be the collateral agent
for the benefit of such Person.
In
addition to the conveyance made in the first paragraph of this
Section
2.01, the Depositor does hereby convey,
assign and set over to the Trustee for
the benefit of the Certificateholders its
rights and interests under the Sale
Agreement, including the Depositor's right,
title and interest in the
representations and warranties contained in
the Sale Agreement, the rights in
the Transfer Agreement described therein
and the benefit of the repurchase
obligations and the obligation of the
Seller contained in the Sale Agreement to
take, at the request of the Depositor or
the Trustee, all action on its part
which is reasonably necessary to ensure the
enforceability of a Mortgage Loan.
The Trustee hereby accepts such assignment,
and shall be entitled to exercise
all rights of the Depositor under the Sale
Agreement as if, for such purpose, it
were the Depositor. The foregoing sale,
transfer, assignment, set-over, deposit
and conveyance does not and is not intended
to result in creation or assumption
by the Trustee of any obligation of the
Depositor, the Seller, or any other
Person in connection with the Mortgage
Loans or any other agreement or
instrument relating thereto except as
specifically set forth herein.
Section
2.02. Acceptance by the Trustee of the Mortgage Loans.
Except as
set forth in the Exception Report delivered contemporaneously
herewith (the "Exception Report"), the
Trustee acknowledges receipt of the
Mortgage Note for each Mortgage Loan and
delivery of a Mortgage File (but does
not acknowledge receipt of all documents
required to be
-47-
<PAGE>
included in such Mortgage File) with
respect to each Mortgage Loan and declares
that it holds and will hold such documents
and any other documents constituting
a part of the Mortgage Files delivered to
it in trust for the use and benefit of
all present and future Certificateholders.
The Depositor will cause the Seller
to repurchase any Mortgage Loan to which a
material exception was taken in the
Exception Report unless such exception is
cured to the satisfaction of the
Trustee within 45 Business Days of the
Closing Date.
The
Trustee acknowledges receipt of the three Cap Contracts (forms
of
which are attached hereto as Exhibits N-1,
N-2 and N-3), the Transfer Agreement,
the Bring Down Letter and the Sale
Agreement.
The
Trustee agrees, for the benefit of Certificateholders and the
NIMs
Insurer, to review or cause its Custodian
to review each Mortgage File delivered
to it within 60 days after the Closing Date
to ascertain and to certify, within
70 days of the Closing Date, to the NIMs
Insurer, the Depositor, the Master
Servicer and the Servicer that all
documents required by Section 2.01 have been
executed and received, and that such
documents relate to the Mortgage Loans
identified in Exhibit B that have been
conveyed to it. If the Trustee finds any
document or documents constituting a part
of a Mortgage File to be missing or
defective (that is, mutilated, damaged,
defaced or unexecuted) in any material
respect, the Trustee shall promptly (and in
any event within no more than five
Business Days) after such finding so notify
the NIMs Insurer, the Servicer, the
Master Servicer, the Seller and the
Depositor. In addition, the Trustee shall
also notify the NIMs Insurer, the Master
Servicer, the Servicer, the Seller and
the Depositor if the original Mortgage with
evidence of recording thereon with
respect to a Mortgage Loan is not received
within 70 days of the Closing Date;
if it has not been received because of a
delay caused by the public recording
office where such Mortgage has been
delivered for recordation, the Depositor
shall deliver or cause to be delivered to
the Trustee written notice stating
that such Mortgage has been delivered to
the appropriate public recording office
for recordation and thereafter the
Depositor shall deliver or cause to be
delivered such Mortgage with evidence of
recording thereon upon receipt thereof
from the public recording office. The
Trustee shall request that the Seller
correct or cure such omission, defect or
other irregularity, or substitute a
Mortgage Loan pursuant to the provisions of
Section 2.03, within 90 days from
the date the Seller was notified of such
omission or defect and, if the Seller
does not correct or cure such omission or
defect within such period, that the
Seller purchase such Mortgage Loan from the
Trust Fund within 90 days from the
date the Trustee notified the Seller of
such omission, defect or other
irregularity at the Purchase Price of such
Mortgage Loan. The Purchase Price for
any Mortgage Loan purchased pursuant to
this Section 2.02 shall be paid to the
Servicer and deposited by the Servicer in
the Certificate Account or Collection
Account, as appropriate, promptly upon
receipt, and, upon receipt by the Trustee
of written notification of such deposit
signed by a Servicing Officer, the
Trustee, upon receipt of a Request for
Release, shall promptly release to the
Seller the related Mortgage File and the
Trustee shall execute and deliver such
instruments of transfer or assignment,
without recourse, as shall be requested
by the Seller and necessary to vest in the
Seller or its designee, as the case
may be, any Mortgage Loan released pursuant
hereto, and the Trustee shall have
no further responsibility with regard to
such Mortgage Loan. It is understood
and agreed that the obligation of the
Seller to purchase, cure or substitute any
Mortgage Loan as to which a material defect
in or omission of a constituent
document exists shall constitute the sole
remedy respecting such defect or
omission available to the Trustee on behalf
of Certificateholders and the NIMs
Insurer. The preceding sentence shall not,
however, limit any remedies available
to the Certificateholders, the NIMs
Insurer, the Depositor or the Trustee
pursuant to the Sale Agreement, the
Transfer Agreement and the Bring-Down
Letter. The Trustee shall be under no duty
or obligation to inspect, review and
examine such documents, instruments,
certificates or other papers to determine
that they are genuine, enforceable,
recordable or appropriate to the represented
purpose, or that they have actually been
recorded, or that they are other than
what they purport to be on their face. The
Servicer, the Master Servicer, the
Securities Administrator and the Trustee
shall keep confidential the name of
each Mortgagor except as required by this
Agreement and the Servicer, the Master
Servicer, the Securities Administrator and
the Trustee shall not solicit any
such Mortgagor for the
-48-
<PAGE>
purpose of refinancing the related Mortgage
Loan; notwithstanding anything
herein to the contrary, the foregoing shall
not be construed to prohibit (i)
disclosure of any and all information that
is or becomes publicly known, or
information obtained by the Trustee, the
Servicer, the Master Servicer or the
Securities Administrator from sources other
than the other parties hereto, (ii)
disclosure of any and all information (A)
if required by any applicable law,
rule or regulation, (B) to any government
agency or regulatory body having or
claiming authority to regulate or oversee
any aspects of the Trustee's business
or that of its affiliates, (C) pursuant to
any subpoena, civil investigation
demand or similar demand or request of any
court, regulatory authority,
arbitrator or arbitration to which Trustee
or any affiliate or an officer,
director, employer or shareholder thereof
is a party or (D) to any affiliate,
independent or internal auditor, agent,
employee or attorney of the Trustee, the
Servicer, the Master Servicer or the
Securities Administrator having a need to
know the same, provided that the Trustee,
the Servicer, the Master Servicer or
the Securities Administrator, as
applicable, advises such recipient of the
confidential nature of the information
being disclosed, or (iii) any other
disclosure authorized by the Depositor. It
is understood and agreed that all
rights and benefits relating to the
solicitation of any Mortgagors and the
attendant rights, title and interest in and
to the list of Mortgagors and data
relating to their Mortgages shall be
retained by the Servicer.
Within 70
days of the Closing Date, the Trustee (or its custodian) shall
deliver to the NIMs Insurer, the Depositor,
the Master Servicer and the Servicer
the Trustee's Certification, substantially
in the form of Exhibit D attached
hereto, evidencing the completeness of the
Mortgage Files, with any exceptions
noted thereto.
Section
2.03. Representations, Warranties and Covenants of the
Depositor.
(a) The
Depositor hereby represents and warrants to the Servicer,
the Master Servicer, the Securities
Administrator, the NIMs Insurer and the
Trustee as follows, as of the date
hereof:
(i) The
Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware and
has full
power and authority (corporate and other) necessary to own or
hold its
properties and to conduct its business as now conducted by it
and
to enter
into and perform its obligations under this Agreement and the
Sale
Agreement.
(ii) The Depositor has
the full corporate power and authority to
execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and the Sale Agreement
and
has duly
authorized, by all necessary corporate action on its part, the
execution,
delivery and performance of this Agreement and the Sale
Agreement;
and this Agreement and the Sale Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto,
constitutes a legal, valid and binding obligation of the
Depositor,
enforceable against the Depositor in accordance with its terms,
subject,
as to
enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium
and other similar laws affecting creditors' rights generally
and (ii)
general principles of equity, regardless of whether enforcement
is sought
in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement and the Sale
Agreement
by the Depositor, the consummation of the transactions
contemplated by this Agreement and the Sale Agreement, and the
fulfillment
of or
compliance with the terms hereof are in the ordinary course of
business
of the Depositor and will not (A) result in a material breach
of
any term
or provision of the charter or by-laws of the Depositor or (B)
materially
conflict with, result in a violation or acceleration of, or
result in
a material default under, the terms of any other material
agreement
or instrument to which the Depositor is a party or by which it
may be
bound or (C) constitute a
-49-
<PAGE>
material
violation of any statute, order or regulation applicable to the
Depositor
of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor; and
the
Depositor
is not in breach or violation of any material indenture or
other
material
agreement or instrument, or in violation of any statute, order
or
regulation of any
court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation
may
materially impair the Depositor's ability to perform or meet any
of
its
obligations under this Agreement.
(iv) No litigation is
pending, or, to the best of the Depositor's
knowledge,
threatened, against the Depositor that would materially and
adversely
affect the execution, delivery or enforceability of this
Agreement
and the Sale Agreement or the ability of the Depositor to
perform
its obligations under this Agreement and the Sale Agreement in
accordance
with the terms hereof.
(v) No consent,
approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Depositor of, or compliance by the Depositor
with, this
Agreement
and the Sale Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval,
authorization or
order is
required, the Depositor has obtained the same. The Depositor
hereby
represents and warrants to the Trustee with respect to each
Mortgage
Loan as of the Closing Date and following the transfer of the
Mortgage
Loans to it by the Seller, the Depositor had good title to the
Mortgage
Loans and the Mortgage Notes were subject to no offsets,
claims,
liens,
mortgage, pledge, charge, security interest, defenses or
counterclaims.
(b) The
representations and warranties of the Transferor with
respect to the Mortgage Loans contained in
the Transfer Agreement were made as
of the date of the Transfer Agreement and
brought forward to the Closing Date
pursuant to the Bring Down Letter. The
representations and warranties of the
Transferor with respect to the Mortgage
Loans contained in the Bring Down Letter
were made as of the Closing Date. The
representations and warranties of the
Seller with respect to the Mortgage Loans
contained in the Sale Agreement were
made as of the Closing Date.
To the
extent that any fact, condition or event with respect to a
Mortgage
Loan constitutes a breach of a
representation or warranty of the Transferor
under the Transfer Agreement (whether or
not such fact, condition or event would
also constitute a breach of a
representation or warranty of the Seller under the
Sale Agreement), the only rights or
remedies of the Trustee, the NIMs Insurer or
of any Certificateholder shall be first,
the Trustee's right to enforce the
obligations of the Transferor under such
applicable representation or warranty
made by it and, second, only if the
Transferor is unable or unwilling to fulfill
its obligations to cure or repurchase such
Mortgage Loan, the Trustee shall
exercise its right to enforce any rights it
may have against the Seller under
the Sale Agreement with respect to such
representation or warranty; provided,
that in the event the Trustee shall have
received a copy of any Transferor
Affirmation Notice, the Trustee shall only
be entitled to enforce any rights it
has against the Transferor under the
Transfer Agreement and shall not have any
rights against the Seller under the Sale
Agreement with respect to such
representation or warranty. To the extent
that any fact, condition or event with
respect to a Mortgage Loan constitutes a
breach of a representation or warranty
made by the Seller in the Sale Agreement
that does not also constitute a breach
of a representation or warranty of the
Transferor under the Transfer Agreement,
the Trustee shall enforce any rights it may
have against the Seller under the
Sale Agreement. In furtherance of the
above, the Seller expressly acknowledges
that prior to the issuance of a Transferor
Affirmation Notice, it shall be
obligated and liable to the Trustee, the
NIMs Insurer and the Certificateholders
for any breach of a representation or
warranty made under the Transfer
Agreement, but only after the Transferor
evidences that it is unwilling or
unable to fulfill its contractual
obligations under the Transfer Agreement. The
Trustee acknowledges that the Depositor
-50-
<PAGE>
shall have no obligation or liability with
respect to any breach of any
representation or warranty with respect to
the Mortgage Loans (except as set
forth in Section 2.03(a)(v)) under any
circumstances.
In
addition to the representations and warranties of the Transferor in
the
Transfer Agreement that were brought
forward to the Closing Date pursuant to the
Bring Down Letter, with respect to each
Mortgage Loan, the Transferor made
certain additional covenants regarding such
Mortgage Loan, as set forth in the
Transfer Agreement. With respect to any
breach of such additional covenants that
materially and adversely affects the
interests of the Certificateholders in such
Mortgage Loan, the Seller shall (1) use
reasonable efforts to enforce such
covenant against the Transferor and (2) if
the Seller successfully enforces any
obligation of the Transferor to repurchase
such Mortgage Loan, the Seller shall
repurchase such Mortgage Loan in accordance
with this Section 2.03. If the
Seller does not successfully enforce the
obligation, if any, of the Transferor
to repurchase a Mortgage Loan with respect
to any breach of any such additional
covenants, the Seller shall have no
obligation or right to repurchase or cure
such Mortgage Loan.
(c) Upon
discovery by any of the Depositor, the Master Servicer,
the Securities Administrator, the Servicer,
the NIMs Insurer or the Trustee of a
breach of any of such representations and
warranties that adversely and
materially affects the value of the related
Mortgage Loan, Prepayment Charges or
the interests of the Certificateholders,
the party discovering such breach shall
give prompt written notice to the other
parties. Within 90 days of the discovery
of such breach of any representation or
warranty, the Transferor or the Seller,
as applicable, shall either (a) cure such
breach in all material respects, (b)
repurchase such Mortgage Loan or any
property acquired in respect thereof from
the Trustee at the Purchase Price or (c)
within the two year period following
the Closing Date, substitute a Replacement
Mortgage Loan for the affected
Mortgage Loan. In the event of discovery of
a breach of any representation and
warranty of the Transferor or the Seller,
the Trustee shall enforce its rights
under the Transfer Agreement or the Sale
Agreement for the benefit of
Certificateholders and the NIMs Insurer. If
a breach of the representations and
warranties set forth in the Transfer
Agreement exists solely due to the
unenforceability of a Prepayment Charge,
the Trustee shall notify the NIMs
Insurer thereof and not seek to enforce the
repurchase remedy provided for
herein unless directed in writing to do so
by the NIMs Insurer. In the event of
a breach of the representations and
warranties with respect to the Mortgage
Loans set forth in the Transfer Agreement,
the Trustee shall, at the request of
the NIMs Insurer, enforce the right of the
Trust Fund and the NIMs Insurer to be
indemnified for such breach of
representation and warranty. In the event that
such breach relates solely to the
unenforceability of a Prepayment Charge,
amounts received in respect of such
indemnity up to the amount of such
Prepayment Charge shall be distributed
pursuant to Section 4.04(b)(i). As
provided in the Sale Agreement, if the
Transferor substitutes for a Mortgage
Loan for which there is a breach of any
representations and warranties in the
Transfer Agreement which adversely and
materially affects the value of such
Mortgage Loan and such substitute mortgage
loan is not a Replacement Mortgage
Loan, under the terms of the Sale
Agreement, the Seller will, in exchange for
such substitute Mortgage Loan, (i) provide
the applicable Purchase Price for the
affected Mortgage Loan or (ii) within two
years of the Closing Date, substitute
such affected Mortgage Loan with a
Replacement Mortgage Loan. Any such
substitution shall not be effected prior to
the additional delivery to the
Trustee of a Request for Release
substantially in the form of Exhibit I and
shall not be effected unless it is within
two years of the Startup Day. As
provided in the Sale Agreement, the Seller
indemnifies and holds the Trust Fund,
the Trustee, the Depositor, the NIMs
Insurer, the Master Servicer, the
Securities Administrator, the Servicer and
each Certificateholder harmless
against any and all taxes, claims, losses,
penalties, fines, forfeitures,
reasonable legal fees and related costs,
judgments, and any other costs, fees
and expenses that the Trust Fund, the
Trustee, the Depositor, the NIMs Insurer,
the Master Servicer, the Securities
Administrator, the Servicer and any
Certificateholder may sustain in connection
with any actions of the Seller
relating to a repurchase of a Mortgage Loan
other than in compliance with the
terms of this Section 2.03 and the Sale
Agreement, to the extent that any such
action causes (i) any federal or state tax
to be imposed on
-51-
<PAGE>
the Trust Fund or any REMIC provided for
herein, including without limitation,
any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of
the Code or on "contributions after the
startup day" under Section 860G(d)(1) of
the Code, or (ii) any REMIC created
hereunder to fail to qualify as a REMIC at
any time that any Certificate is
outstanding. In furtherance of the foregoing,
if the Seller is not a member of MERS and
repurchases a Mortgage Loan which is
registered on the MERS System, the Seller,
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 Seller
and shall cause such Mortgage to be removed
from registration on the MERS System
in accordance with MERS' rules and
regulations.
With
respect to any Mortgage Loan repurchased by the Depositor pursuant
to
this Agreement, by the Seller pursuant to
the Sale Agreement or by the
Transferor pursuant to the Transfer
Agreement, the principal portion of the
funds received by the Servicer in respect
of such repurchase of a Mortgage Loan
will be considered a Principal Prepayment
and shall be deposited by the Servicer
in the Collection Account pursuant to
Section 3.05 and the Servicer shall notify
the Securities Administrator of its receipt
of the same. The Trustee, upon
receipt of notice from the Servicer of its
receipt of the full amount of the
Purchase Price for a Deleted Mortgage Loan,
or upon receipt of the Mortgage File
for a Replacement Mortgage Loan substituted
for a Deleted Mortgage Loan, shall
release or cause to be released and
reassign to the Depositor, the Seller or the
Transferor, as applicable, the related
Mortgage File for the Deleted Mortgage
Loan and shall execute and deliver such
instruments of transfer or assignment,
in each case without recourse,
representation or warranty, as shall be necessary
to vest in such party or its designee or
assignee title to any Deleted Mortgage
Loan released pursuant hereto, free and
clear of all security interests, liens
and other encumbrances created by this
Agreement, which instruments shall be
prepared by the Trustee (or its custodian),
and neither the Trustee nor the
Securities Administrator shall not have any
further responsibility with respect
to the Mortgage File relating to such
Deleted Mortgage Loan.
With
respect to each Replacement Mortgage Loan to be delivered to
the
Trustee (or its custodian) pursuant to the
terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the
Depositor, the Transferor or the Seller, as
applicable, must deliver to the Trustee (or
its custodian) the Mortgage File for
the Replacement Mortgage Loan containing
the documents set forth in Section 2.01
along with a written certification
certifying as to the delivery of such
Mortgage File and containing the granting
language set forth in Section 2.01;
and (ii) the Depositor will be deemed to
have made, with respect to such
Replacement Mortgage Loan, each of the
representations and warranties made by it
with respect to the related Deleted
Mortgage Loan. The Trustee (or its
custodian) shall review the Mortgage File
with respect to each Replacement
Mortgage Loan and certify to the NIMs
Insurer and the Depositor that all
documents required by Section 2.01 have
been executed and received.
For any
month in which the Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted
Mortgage Loans, the Seller will determine
the amount (if any) by which the aggregate
principal balance of all such
Replacement Mortgage Loans as of the date
of substitution and the aggregate
Prepayment Charges with respect to such
Replacement Mortgage Loans is less than
the aggregate Stated Principal Balance
(after application of the principal
portion of the Scheduled Payment due in the
month of substitution) and aggregate
Prepayment Charges of all such Deleted
Mortgage Loans. An amount equal to the
aggregate of the deficiencies described in
the preceding sentence (such amount,
the "Substitution Adjustment Amount") plus
an amount equal to any unreimbursed
costs, penalties and/or damages incurred by
the Trust Fund in connection with
any violation relating to such Deleted
Mortgage Loan of any predatory or abusive
lending law shall be remitted by the Seller
to the Servicer for deposit into the
Collection Account on the Determination
Date for the Distribution Date relating
to the Prepayment Period during which the
related Mortgage Loan became required
to be purchased or replaced hereunder.
-52-
<PAGE>
Notwithstanding any other provision of this Agreement, the right
to
substitute Mortgage Loans pursuant to this
Article II shall be subject to the
additional limitations that no substitution
of a Replacement Mortgage Loan for a
Deleted Mortgage Loan shall be made unless
the Trustee, the NIMs Insurer and the
Securities Administrator shall each have
received an Opinion of Counsel (at the
expense of the party seeking to make the
substitution) that, under current law,
such substitution will not (A) affect
adversely the status of any REMIC
established hereunder as a REMIC, or of the
related "regular interests" as
"regular interests" in any such REMIC, or
(B) cause any such REMIC to engage in
a "prohibited transaction" or prohibited
contribution pursuant to the REMIC
Provisions.
The
Trustee shall cause the Mortgage Loan Schedule to be amended in
accordance with the terms of this
Agreement.
The Seller
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
Replacement Mortgage Loan or Replacement
Mortgage Loans and shall deliver a copy
of such amended Mortgage Loan Schedule to
the NIMs Insurer, the Servicer, the
Master Servicer and the Trustee. Upon such
substitution by the Seller, such
Replacement Mortgage Loan or Replacement
Mortgage Loans shall constitute part of
the Mortgage Pool and shall be subject in
all respects to the terms of this
Agreement and the Sale Agreement, including
all applicable representations and
warranties thereof included in the Sale
Agreement as of the date of
substitution.
(d) It is
understood and agreed that the representations,
warranties and indemnification (i) set
forth in this Section 2.03, (ii) of the
Seller and the Depositor set forth in the
Sale Agreement and assigned to the
Trustee by the Depositor hereunder and
(iii) of the Transferor, assigned by the
Seller to the Depositor pursuant to the
Sale Agreement and assigned to the
Trustee by the Depositor hereunder shall
each survive delivery of the Mortgage
Files and the Assignment of Mortgage of
each Mortgage Loan to the Trustee and
shall continue throughout the term of this
Agreement.
(e) The
Depositor shall deliver a copy of the Mortgage Loan
Schedule to the Servicer on the Closing
Date.
Section
2.04. Representations and Warranties of the Master Servicer;
Representations and Warranties of the
Servicer; Representations and Warranties
of the Securities Administrator.
(a) The Master
Servicer hereby represents and warrants to the
Depositor, the Servicer and the Trustee as
follows, as of the date hereof:
(i) The Master
Servicer is duly organized and is validly
existing as a national banking association
and is duly authorized and qualified
to transact any and all business
contemplated by this Agreement to be conducted
by the Master Servicer.
(ii) The Master
Servicer has the power and authority to
master service each Mortgage Loan, and to
execute, deliver and perform, and to
enter into and consummate, the transactions
contemplated by this Agreement and
has duly authorized by all necessary action
on the part of the Master Servicer
the execution, delivery and performance of
this Agreement; and this Agreement,
assuming the due authorization, execution
and delivery hereof by the other
parties hereto, constitutes a legal, valid
and binding obligation of the Master
Servicer, enforceable against the Master
Servicer in accordance with its terms,
except that (A) the enforceability hereof
may be limited by bankruptcy,
insolvency, moratorium, receivership and
other similar laws relating to
creditors' rights generally and (B) the
remedy of specific
-53-
<PAGE>
performance and injunctive and other forms
of equitable relief may be subject to
equitable defenses and to the discretion of
the court before which any
proceeding hereunder may be brought.
(iii) The execution and delivery of this Agreement by the
Master Servicer, the master servicing of
the Mortgage Loans under this
Agreement, the consummation of any other of
the transactions contemplated by
this Agreement, 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 material breach of any term or
provision of the charter or by-laws
of the Master Servicer or (B) materially
conflict with, result in a material
breach, violation or acceleration of, or
result in a material 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
(C) constitute a material violation
of 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 in breach
or violation of any material indenture or
other material agreement or
instrument, or in violation of any statute,
order or regulation of any court,
regulatory body, administrative agency or
governmental body having jurisdiction
over it which breach or violation may
materially impair the Master Servicer's
ability to perform or meet any of its
obligations under this Agreement.
(iv) The Master
Servicer, or an affiliate thereof, is an
approved servicer of mortgage loans for
Fannie Mae and for Freddie Mac.
(v) No
litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against
the Master Servicer that would
materially and adversely affect the
execution, delivery or enforceability of
this Agreement or its performance of any of
its other obligations under this
Agreement in accordance with the terms
hereof.
(vi)
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
hereby, or if any such consent, approval,
authorization or order is required,
the Master Servicer has obtained the
same.
(b) The Servicer
hereby represents and warrants to the Depositor,
the Master Servicer, the Securities
Administrator and the Trustee as follows, as
of the date hereof:
(i) The Servicer
is duly organized and is validly existing
as a limited partnership in good standing
under the laws of the State of
Delaware and is duly authorized and
qualified to transact any and all business
contemplated by this Agreement to be
conducted by the Servicer in any state in
which a Mortgaged Property (or Underlying
Mortgaged Property, in the case of a
Co-op Loan) is located or is otherwise not
required under applicable law to
effect such qualification and, in any
event, is in compliance with the doing
business laws of any such state, to the
extent necessary to ensure its ability
to enforce each Mortgage Loan, to service
the Mortgage Loans in accordance with
the terms of this Agreement and to perform
any of its other obligations under
this Agreement in accordance with the terms
hereof.
(ii) The Servicer has
the corporate power and authority to
service each Mortgage Loan, and to execute,
deliver and perform, and to enter
into and consummate the transactions
contemplated by this Agreement and has duly
authorized by all necessary corporate
action on the part of the Servicer the
execution, delivery and performance of this
Agreement; and this Agreement,
assuming the due authorization, execution
and delivery hereof by the other
parties hereto, constitutes a legal, valid
and binding obligation of the
Servicer, enforceable against the Servicer
in accordance with its terms,
-54-
<PAGE>
except that (a) the enforceability hereof
may be limited by bankruptcy,
insolvency, moratorium, receivership and
other similar laws relating to
creditors' rights generally and (b) the
remedy of specific performance and
injunctive and other forms of equitable
relief may be subject to equitable
defenses and to the discretion of the court
before which any proceeding therefor
may be brought.
(iii) The execution and delivery of this Agreement by the
Servicer, the servicing of the Mortgage
Loans under this Agreement, the
consummation of any other of the
transactions contemplated by this Agreement,
and the fulfillment of or compliance with
the terms hereof are in the ordinary
course of business of the Servicer and will
not (A) result in a material breach
of any term or provision of the charter or
by-laws of the Servicer or (B)
materially conflict with, result in a
material breach, violation or acceleration
of, or result in a material default under,
the terms of any other material
agreement or instrument to which the
Servicer is a party or by which it may be
bound, or (C) constitute a material
violation of any statute, order or
regulation applicable to the Servicer of
any court, regulatory body,
administrative agency or governmental body
having jurisdiction over the
Servicer; and the Servicer is not in breach
or violation of any material
indenture or other material agreement or
instrument, or in violation of any
statute, order or regulation of any court,
regulatory body, administrative
agency or governmental body having
jurisdiction over it which breach or
violation may materially impair the
Servicer's ability to perform or meet any of
its obligations under this Agreement.
(iv) The Servicer is
an approved servicer of mortgage loans
for Fannie Mae and is an approved servicer
of mortgage loans for Freddie Mac.
(v) No
litigation is pending or, to the best of the
Servicer's knowledge, threatened, against
the Servicer that would materially and
adversely affect the execution, delivery or
enforceability of this Agreement or
the ability of the Servicer to service the
Mortgage Loans or to perform any of
its other obligations under this Agreement
in accordance with the terms hereof.
(vi) No consent,
approval, authorization or order of any
court or governmental agency or body is
required for the execution, delivery and
performance by the Servicer of, or
compliance by the Servicer with, this
Agreement or the consummation of the
transactions contemplated hereby, or if any
such consent, approval, authorization or
order is required, the Servicer has
obtained the same.
(vii) The Servicer has fully furnished and will fully furnish
(for the period it serviced the Mortgage
Loans), in accordance with the Fair
Credit Reporting Act and its implementing
regulations, accurate and complete
information (e.g., favorable and
unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit
Information Company on a monthly basis.
(viii) Notwithstanding any state or federal law to the
contrary, the Servicer shall not impose or
collect a Prepayment Charge in any
instance when the mortgage debt is
accelerated as the result of the Mortgagor's
default in making the Mortgage Loan
payments.
(c) The
Securities Administrator hereby represents and warrants to
the Depositor, the Master Servicer, the
Servicer and the Trustee as of the date
hereof:
(i) The
Securities Administrator is duly organized and is
validly existing as a national banking
association and is duly authorized and
qualified to transact any and all business
contemplated by this Agreement to be
conducted by the Securities
Administrator.
(ii) The Securities
Administrator has the full corporate
power and authority to execute, deliver and
perform, and to enter into and
consummate, the transactions contemplated
by this
-55-
<PAGE>
Agreement and has duly authorized by all
necessary corporate action on the part
of the Securities Administrator the
execution, delivery and performance of this
Agreement; and this Agreement, assuming the
due authorization, execution and
delivery hereof by the other parties
hereto, constitutes a legal, valid and
binding obligation of the Securities
Administrator, enforceable against the
Securities Administrator in accordance with
its terms, except that (a) the
enforceability hereof may be limited by
bankruptcy, insolvency, moratorium,
receivership and other similar laws
relating to creditors' rights generally and
(b) the remedy of specific performance and
injunctive and other forms of
equitable relief may be subject to
equitable defenses and to the discretion of
the court before which any proceeding
hereunder may be brought.
(iii) The execution and delivery of this Agreement by the
Securities Administrator, the consummation
of any other of the transactions
contemplated by this Agreement, and the
fulfillment of or compliance with the
terms hereof are in the ordinary course of
business of the Securities
Administrator and will not (A) result in a
material breach of any term or
provision of the charter or by-laws of the
Securities Administrator or (B)
materially conflict with, result in a
material breach, violation or acceleration
of, or result in a material default under,
the terms of any other material
agreement or instrument to which the
Securities Administrator is a party or by
which it may be bound, or (C) constitute a
material violation of any statute,
order or regulation applicable to the
Securities Administrator of any court,
regulatory body, administrative agency or
governmental body having jurisdiction
over the Securities Administrator; and the
Securities Administrator is not in
breach or violation of any material
indenture or other material agreement or
instrument, or in violation of any statute,
order or regulation of any court,
regulatory body, administrative agency or
governmental body having jurisdiction
over it which breach or violation may
materially impair the Securities
Administrator's ability to perform or meet
any of its obligations under this
Agreement.
(iv) No litigation is
pending or, to the best of the
Securities Administrator's knowledge,
threatened, against the Securities
Administrator that would materially and
adversely affect the execution, delivery
or enforceability of this Agreement or the
ability of the Securities
Administrator to perform any of its other
obligations under this Agreement in
accordance with the terms hereof.
(v) No consent,
approval, authorization or order of any
court or governmental agency or body is
required for the execution, delivery and
performance by the Securities Administrator
of, or compliance by the Securities
Administrator with, this Agreement or the
consummation of the transactions
contemplated hereby, or if any such
consent, approval, authorization or order is
required, the Securities Administrator has
obtained the same.
Section
2.05. Substitutions and Repurchases of Mortgage Loans that are
not
"Qualified Mortgages."
Upon
discovery by the Depositor, the Master Servicer, the Servicer,
the
Securities 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 promptly (and in any event
within 5 Business Days of discovery) give
written notice thereof to the other
parties. In connection therewith, the
Depositor shall, at the Depositor's
option, either (i) substitute, if the
conditions in Section 2.03(c) with respect
to substitutions are satisfied, a
Replacement Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the
affected Mortgage Loan within 90 days of
such discovery in the same manner as it
would a Mortgage Loan for a breach of
representation or warranty contained in
Section 2.03. The Trustee, upon the
written request of the Depositor, shall
reconvey to the Depositor 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 contained in
Section 2.03.
-56-
<PAGE>
Section
2.06. Authentication and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the
Trust
Fund and, concurrently with such transfer
and assignment, the Securities
Administrator has caused to be
authenticated and delivered to or upon the order
of the Depositor, in exchange for the
Mortgage Loans, Certificates duly
authenticated by the Securities
Administrator in authorized denominations
evidencing ownership of the entire Trust
Fund. The Trustee agrees to hold the
Trust Fund and exercise the rights referred
to above for the benefit of all
present and future Holders of the
Certificates and to perform its duties set
forth in this Agreement in accordance with
the provisions hereof to the best of
its abilities, to the end that the
interests of the Holders may be adequately
and effectively protected.
Section
2.07. REMIC Elections.
(a) The
Depositor hereby instructs and authorizes the Trustee to
make an appropriate election to treat each
of the Upper Tier REMIC, the Lower
Tier REMIC, the M2 REMIC, the M3 REMIC, the
B1 REMIC, the B2 REMIC, the B3 REMIC
and the C REMIC as a REMIC. The Trustee,
upon written direction of the
Securities Administrator, shall sign the
returns providing for such elections
and such other tax or information returns
which are required to be signed by the
Trustee under applicable law. This
Agreement shall be construed so as to carry
out the intention of the parties that each
of the Upper Tier REMIC, the Lower
Tier REMIC, the M2 REMIC, the M3 REMIC, the
B1 REMIC, the B2 REMIC, the B3 REMIC
and the C REMIC be treated as a REMIC at
all times prior to the date on which
the Trust Fund is terminated.
(b) The
Preliminary Statement sets forth the designations and
"latest possible maturity date" for federal
income tax purposes of all interests
created hereby. The "Startup Day" for
purposes of the REMIC Provisions shall be
the Closing Date. Each REMIC's fiscal year
shall be the calendar year.
The Lower Tier REMIC
shall consist of all of the assets of the Trust Fund,
other than (i) amounts distributable to the
Class P Certificates pursuant to
Section 4.04(b)(i) hereof, (ii) the
interests issued by the Lower Tier REMIC,
(iii) the grantor trusts described in
Section 2.07 hereof, (iv) each Cap
Contract and the Cap Contract Account and
(v) the Class UTM Interests, the Class
UTB Interests and the Class UTC Interest.
The Lower Tier REMIC shall issue the
Lower Tier REMIC Regular Interests which
shall be designated as regular
interests of such REMIC and shall issue the
Class LTR Interest that shall be
designated as the sole class of residual
interest in the Lower Tier REMIC. Each
of the Lower Tier REMIC Regular Interests
shall have the characteristics set
forth in its definition.
The assets
of the Upper Tier REMIC shall be the Lower Tier REMIC Regular
Interests. The REMIC Regular Interests
shall be designated as the regular
interests in the Upper Tier REMIC and the
Residual Interest shall be designated
as the sole class of residual interest in
the Upper Tier REMIC. For federal
income tax purposes, (i) the pass-through
rate on the REMIC Regular Interests
represented by the Class A-1 Certificates
and on the sole class of residual
interest in the Upper Tier REMIC shall be
subject to a cap equal to the Class
A-1 Available Funds Cap; (ii) the
pass-through rate on the REMIC Regular
Interests represented by the Class A-2
Certificates shall be subject to a cap
equal to the Class A-2 Available Funds Cap;
and (iii) the pass-through rate on
the REMIC Regular Interests represented by
the Class A-3 Certificates and the
Subordinate Certificates, and on the Class
UTM Interests and the Class UTB
Interests shall be subject to a cap equal
to the Weighted Average Available
Funds Cap.
The asset
of the M2 REMIC shall be the Class UTM2 Interest. The Class M-2
Certificate (other than the rights in
interest rate cap contracts described in
this Section 2.07) shall be designated as
the regular interest in the M2 REMIC
and the Class M2R Interest shall be
designated as the sole class of
-57-
<PAGE>
residual interest in the M2 REMIC. For
federal income tax purposes, the
pass-through rate on the REMIC regular
interest represented by the Class M-2
Certificates shall be subject to a cap
equal to the Weighted Average Available
Funds Cap.
The asset
of the M3 REMIC shall be the Class UTM3 Interest. The Class M-3
Certificate (other than the rights in
interest rate cap contracts described in
this Section 2.07) shall be designated as
the regular interest in the M3 REMIC
and the Class M3R Interest shall be
designated as the sole class of residual
interest in the M3 REMIC. For federal
income tax purposes, the pass-through rate
on the REMIC regular interest represented
by the Class M-3 Certificates shall be
subject to a cap equal to the Weighted
Average Available Funds Cap.
The asset
of the B1 REMIC shall be the Class UTB1 Interest. The Class B-1
Certificate (other than the rights in
interest rate cap contracts described in
this Section 2.07) shall be designated as
the regular interest in the B1 REMIC
and the Class B1R Interest shall be
designated as the sole class of residual
interest in the B1 REMIC. For federal
income tax purposes, the pass-through rate
on the REMIC regular interest represented
by the Class B-1 Certificates shall be
subject to a cap equal to the Weighted
Average Available Funds Cap.
The asset
of the B2 REMIC shall be the Class UTB2 Interest. The Class B-2
Certificate (other than the rights in
interest rate cap contracts described in
this Section 2.07) shall be designated as
the regular interest in the B2 REMIC
and the Class B2R Interest shall be
designated as the sole class of residual
interest in the B2 REMIC. For federal
income tax purposes, the pass-through rate
on the REMIC regular interest represented
by the Class B-2 Certificates shall be
subject to a cap equal to the Weighted
Average Available Funds Cap.
The asset
of the B3 REMIC shall be the Class UTB3 Interest. The Class B-3
Certificate (other than the rights in
interest rate cap contracts described in
this Section 2.07) shall be designated as
the regular interest in the B3 REMIC
and the Class B3R Interest shall be
designated as the sole class of residual
interest in the B3 REMIC. For federal
income tax purposes, the pass-through rate
on the REMIC regular interest represented
by the Class B-3 Certificates shall be
subject to a cap equal to the Weighted
Average Available Funds Cap.
The asset
of the C REMIC shall be the Class UTC Interest. The
Uncertificated Class C Interest shall be
designated as the regular interest in
the C REMIC and the Class CR Interest shall
be designated as the sole class of
residual interest in the C REMIC.
The
beneficial ownership of the Class LTR Interest and the Residual
Interest shall be represented by the Class
R Certificate. The Class LTR Interest
shall not have a principal balance or bear
interest.
The
beneficial ownership of the Class M2R Interest, the Class M3R
Interest, the Class B1R Interest, the Class
B2R Interest, the Class B3R Interest
and the Class CR Interest shall be
represented by the Class R-X Certificate. The
Class M2R Interest, the Class M3R Interest,
the Class B1R Interest, the Class
B2R Interest, the Class B3R Interest and
the Class CR Interest shall not have
principal balances and shall not bear
interest.
(c) The "tax
matters person" with respect to the Lower Tier REMIC
and the Upper Tier REMIC for purposes of
the REMIC Provisions shall be the
beneficial owner of the Class R
Certificate; provided, however, that the Holder
of the Class R Certificate, by its
acceptance thereof, irrevocably appoints the
Securities Administrator as its agent and
attorney-in-fact to act as "tax
matters person" with respect to each such
REMIC for purposes of the REMIC
Provisions. If there is more than one
beneficial owner of the Class R
Certificate, the "tax matters person" shall
be the Person with the
-58-
<PAGE>
greatest percentage interest in the Class R
Certificate and, if there is more
than one such Person, shall be determined
under Treasury regulation Section
1.860F-4(d) and Treasury regulation Section
301.6231(a)(7)-1. The "tax matters
person" with respect to each of the M2
REMIC, the M3 REMIC, the B1 REMIC, the B2
REMIC, the B3 REMIC and the C REMIC for
purposes of the REMIC Provisions shall
be the beneficial owner of the Class R-X
Certificate; provided, however, that
the Holder of a Class R-X Certificate, by
its acceptance thereof, irrevocably
appoints the Securities Administrator as
its agent and attorney-in-fact to act
as "tax matters person" with respect to
each such REMIC for purposes of the
REMIC Provisions. If there is more than one
beneficial owner of the Class R-X
Certificate, the "tax matters person" shall
be the Person with the greatest
percentage interest in the Class R-X
Certificate and, if there is more than one
such Person, shall be determined under
Treasury regulation Section 1.860F-4(d)
and Treasury regulation Section
301.6231(a)(7)-1.
(d) It is
intended that the rights of each Class of the Class A,
Class M and Class B Certificates to receive
payments in respect of Excess
Interest shall be treated as a right in
interest rate cap contracts written by
the Class C Certificateholders in favor of
the holders of each Class of the
Class A, Class M and Class B Certificates
and such shall be accounted for as
property held separate and apart from the
regular interests in the Upper Tier
REMIC held by the holders of the Class A
(other than the Class R Certificate),
Class M-1 Certificates, the residual
interest in the Upper Tier REMIC held by
the holder of the Class R Certificate, the
regular interest in the M2 REMIC held
by the holders of the Class M-2
Certificates, the regular interest in the M3
REMIC held by the holders of the Class M-3
Certificates, the regular interest in
the B1 REMIC held by the holders of the
Class B-1 Certificates, the regular
interest in the B2 REMIC held by the
holders of the Class B-2 Certificates and
the regular interest in the B3 REMIC held
by the holders of the Class B-3
Certificates. For information reporting
requirements, the rights of the Class A,
Class M and Class B Certificates to receive
payments in respect of Excess
Interest shall be assumed to have zero or a
de minimis value. This provision is
intended to satisfy the requirements of
Treasury Regulations Section 1.860G-2(i)
for the treatment of property rights
coupled with REMIC interests to be
separately respected and shall be
interpreted consistently with such regulation.
On each Distribution Date, to the extent
that any of the Class A, Class M and
Class B Certificates receive payments in
respect of Excess Interest, such
amounts, to the extent not derived from
payments on the Cap Contracts, will be
treated as distributed by the Upper Tier
REMIC to the Class UTC Interest and
distributed by the C REMIC to the Class C
Certificates pro rata in payment of
the amounts specified in Section 4.04(g)
and then paid to the relevant Class of
Certificates pursuant to the related
interest rate cap agreement.
(e) The parties
intend that the portion of the Trust Fund
consisting of the Uncertificated Class C
Interest, the Cap Contracts, the Cap
Contract Account, and the obligation of the
holders of the Class C Certificates
to pay amounts in respect of Excess
Interest to the holders of the Class A,
Class M and Class B Certificates shall be
treated as a "grantor trust" under the
Code, for the benefit of the holders of the
Class C Certificates, and the
provisions hereof shall be interpreted
consistently with this intention. In
furtherance of such intention, the
Securities Administrator shall (i) furnish or
cause to be furnished to the holders of the
Class C Certificates information
regarding their allocable share, if any, of
the income with respect to such
grantor trust, (ii) file or cause to be
filed with the Internal Revenue Service
Form 1041 (together with any necessary
attachments) and such other forms as may
be applicable and (iii) comply with such
information reporting obligations with
respect to payments from such grantor trust
to the holders of Class A, Class M,
Class B and Class C Certificates as may be
applicable under the Code.
(f) The parties
intend that the portion of the Trust Fund
consisting of the right to receive amounts
distributable to the Class P
Certificates pursuant to Section 4.04(b)(i)
hereof shall be treated as a
"grantor trust" under the Code, for the
benefit of the holders of the Class P
Certificates, and
-59-
<PAGE>
the provisions hereof shall be interpreted
consistently with this intention. In
furtherance of such intention, the
Securities Administrator shall (i) furnish or
cause to be furnished to the holders of the
Class P Certificates information
regarding their allocable share of the
income with respect to such grantor trust
and (ii) file or cause to be filed with the
Internal Revenue Service Form 1041
(together with any necessary attachments)
and such other forms as may be
applicable.
(g)
[RESERVED]
(h) All payments
of principal and interest at the Net Mortgage
Rate on each of the Mortgage Loans (other
than amounts distributable to the
Class P Certificates pursuant to Section
4.04(b)(i) hereof) received from the
Mortgage Loans shall be paid to the Lower
Tier REMIC Regular Interests until the
principal balance of all such interests
have been reduced to zero and any losses
allocated to such interests have been
reimbursed. Any excess amounts shall be
distributed to the Class LTR Interest. On
each Distribution Date, payments and
losses shall be allocated among the Lower
Tier REMIC Regular Interests so that
(i) each of the Lower Tier REMIC I Marker
Interests shall have a principal
balance equal to 25% of the principal
balance of the Corresponding Certificates,
(ii) the Class LTIX Interest has a
principal balance equal to the excess of (x)
50% of the remaining principal balance of
the Mortgage Loans over (y) the
aggregate principal balance of the Lower
Tier REMIC I Marker Interests (if
necessary to reflect an increase in
overcollateralization, accrued and unpaid
interest on the Class LTIX interest may be
added to its principal amount to
achieve this result) and (iii) the
aggregate principal amount of the Class
LTII1A Interest, Class LTII1B Interest,
Class LTII2A Interest, Class LTII2B
Interest and the Class LTIIX Interest shall
equal 50% of the remaining principal
balance of the Mortgage Loans.
Distributions and losses allocated to the Lower
Tier REMIC Regular Interests described in
clause (iii) of the preceding sentence
will be allocated among such Lower Tier
REMIC Regular Interests in the following
manner: (x) such distributions shall be
deemed made to such Lower Tier REMIC
Regular Interests first, so as to keep the
principal balance of the each such
Lower Tier REMIC Regular Interest with "B"
at the end of its designation equal
to 0.05% of the aggregate scheduled
principal balance of the Mortgage Loans in
the related Mortgage Group and second, to
such Lower Tier REMIC Regular
Interests with "A" at the end of its
designation so that the uncertificated
principal balance of each such Lower Tier
REMIC Regular Interest is equal to
0.05% of the excess of (I) the aggregate
scheduled principal balance of the
Mortgage Loans in the related Mortgage
Group over (II) the aggregate principal
balance of Certificate Group One, in the
case of the Class LTII1A Interest, or
Certificate Group Two, in the case of the
Class LTII2A Interest (except that if
0.05% of any such excess is greater than
the principal amount of the related
Lower Tier REMIC II Marker Interest with
"A" at the end of its designation, the
least amount of principal shall be
distributed to each Lower Tier REMIC II
Marker Interest with "A" at the end of its
designation such that the Lower Tier
REMIC Subordinated Balance Ratio is
maintained) and finally, any remaining
distributions of principal to the Class
LTIIX Interest and (y) such losses shall
be allocated among the Lower Tier REMIC
Regular Interests described in clause
(iii) of the preceding sentence first, so
as to keep the principal balance of
the each such Lower Tier REMIC Regular
Interest with "B" at the end of its
designation equal to 0.05% of the aggregate
scheduled principal balance of the
Mortgage Loans in the related Mortgage
Group; second, to such Lower Tier REMIC
Regular Interests with "A" at the end of
its designation so that the
uncertificated principal balance of each
such Lower Tier REMIC Regular Interest
is equal to 0.05% of the excess of (I) the
aggregate scheduled principal balance
of the Mortgage Loans in the related
Mortgage Group over (II) the aggregate
principal balance of Certificate Group One,
in the case of the Class LTII1A
Interest, or Certificate Group Two, in the
case of the Class LTII2A Interest
(except that if 0.05% of any such excess is
greater than the principal amount of
the related Lower Tier REMIC II Marker
Interest with "A" at the end of its
designation, the least amount of losses
shall be allocated to each Lower REMIC
II Marker Interest with "A" at the end of
its designation such that the Lower
Tier REMIC Subordinated Balance Ratio is
maintained) and finally, any remaining
losses to the Class LTIIX Interest.
Notwithstanding the preceding two sentences,
however, losses not allocated to any Class
of Certificates will not be allocated
-60-
<PAGE>
to any Lower Tier REMIC Regular Interests.
All computations with respect to the
Lower Tier REMIC Regular Interests shall be
taken out to ten decimal places.
Any
available funds remaining in the Lower Tier REMIC on a
Distribution
Date after distributions to the Lower Tier
REMIC Regular Interests shall be
distributed to the Class R Certificates in
respect of the Class LTR Interest.
If on any
Distribution Date the Certificate Principal Balance of any
Class
of Certificates is increased pursuant to
the last sentence of the definition of
"Certificate Principal Balance", then there
shall be an equivalent increase in
the principal amounts of the Lower Tier
REMIC Regular Interests, with such
increase allocated (before the making of
distributions and the allocation of
losses on the Lower Tier REMIC Regular
Interests on such Distribution Date)
among the Lower Tier REMIC Regular
Interests so that, to the greatest extent
possible, (i) each of the Lower Tier REMIC
I Marker Interests has a principal
balance equal to 25% of the principal
balance of the Corresponding Certificates,
(ii) the Class LTIX Interest has a
principal balance equal to the excess of (x)
50% of the remaining principal balance of
the Mortgage Loans over (y) the
aggregate principal balance of the Lower
Tier REMIC I Marker Interests and (iii)
the aggregate principal amount of the Lower
Tier REMIC II Marker Interests and
the Class LTIIX Interest shall equal 50% of
the remaining principal balance of
the Mortgage Loans. Allocations in
connection with clause (iii) shall be made so
that, to the greatest extent possible, (a)
the principal balance of each Lower
Tier REMIC II Marker Interest with "B" at
the end of its designation equals
0.05% of the aggregate scheduled principal
balance of the Mortgage Loans in
related Mortgage Group, (b) the principal
balance of each Lower Tier REMIC II
Marker Interest with "A" at the end of its
designation equals 0.05% of the
excess of (x) the aggregate scheduled
principal balance of the Mortgage Loans in
related Mortgage Group over (y) the
aggregate principal balance of Certificate
Group One in the case of the Class LTII1A
Interest, or Certificate Group Two in
the case of the Class LTII2A Interest and
(c) any remaining allocations are made
to the Class LTIIX Interest.
For
purposes of this Section 2.07, (i) the Class LTII1A Interest and
Class
LTII1B Interest shall be related to Group
One, and (ii) the Class LTII2A
Interest and Class LTII2B Interest shall be
related to Group Two.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class M-2 Certificates, shall be
allocated to the Class UTM2 Interest. If on
any Distribution Date the
Certificate Principal Balance of the Class
M-2 Certificates is increased
pursuant to the last sentence of the
definition of "Certificate Principal
Balance", then there shall be an equivalent
increase in the principal amount of
the Class UTM2 Interest.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class M-3 Certificates, shall be
allocated to the Class UTM3 Interest. If on
any Distribution Date the
Certificate Principal Balance of the Class
M-3 Certificates is increased
pursuant to the last sentence of the
definition of "Certificate Principal
Balance", then there shall be an equivalent
increase in the principal amount of
the Class UTM3 Interest.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class B-1 Certificates, shall be
allocated to the Class UTB1 Interest. If on
any Distribution Date the
Certificate Principal Balance of the Class
B-1 Certificates is increased
pursuant to the last sentence of the
definition of "Certificate Principal
Balance", then there shall be an equivalent
increase in the principal amount of
the Class UTB1 Interest.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class B-2 Certificates, shall be
allocated to the Class UTB2 Interest. If
on
-61-
<PAGE>
any Distribution Date the Certificate
Principal Balance of the Class B-2
Certificates is increased pursuant to the
last sentence of the definition of
"Certificate Principal Balance", then there
shall be an equivalent increase in
the principal amount of the Class UTB2
Interest.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class B-3 Certificates, shall be
allocated to the Class UTB3 Interest. If on
any Distribution Date the
Certificate Principal Balance of the Class
B-3 Certificates is increased
pursuant to the last sentence of the
definition of "Certificate Principal
Balance", then there shall be an equivalent
increase in the principal amount of
the Class UTB3 Interest.
All
payments of scheduled principal and prepayments and Realized Losses
on
the Mortgage Loans that are allocated to
the Class C Certificates, shall be
allocated to the Class UTC Interest. If on
any Distribution Date the Certificate
Principal Balance of the Class C
Certificates is increased pursuant to the last
sentence of the definition of "Certificate
Principal Balance", then there shall
be an equivalent increase in the principal
amount of the Class UTC Interest.
(i) In the event that any REMIC
provided for herein fails to
qualify as a REMIC, loses its status as a
REMIC or incurs federal, state or
local taxes as a result of a prohibited
transaction or prohibited contribution
under the REMIC Provisions due to the
negligent performance by the Servicer of
its duties and obligations set forth
herein, the Servicer shall indemnify the
NIMs Insurer, the Trustee, the Securities
Administrator, the Master Servicer and
the Trust Fund against any and all Losses
resulting from such negligence;
provided, however, that the Servicer shall
not be liable for any such Losses
attributable to the action or inaction of
the Trustee, the Securities
Administrator, the Master Servicer, the
Depositor or the Holder of the residual
interest in such REMIC, as applicable, nor
for any such Losses resulting from
misinformation provided by the Holder of
the residual interest in such REMIC on
which the Servicer has relied. The
foregoing shall not be deemed to limit or
restrict the rights and remedies of the
Holder of the residual interest in such
REMIC now or hereafter existing at law or
in equity. Notwithstanding the
foregoing, however, in no event shall the
Servicer have any liability (1) for
any action or omission that is taken in
accordance with and in compliance with
the express terms of, or which is expressly
permitted by the terms of, this
Agreement, (2) for any Losses other than
those arising out of a negligent
performance by the Servicer of its duties
and obligations set forth herein, and
(3) for any special or consequential
damages to Certificateholders (in addition
to payment of principal and interest on the
Certificates).
(j) In the event
that any REMIC provided for herein fails to
qualify as a REMIC, loses its status as a
REMIC, or incurs federal, state or
local taxes as a result of a prohibited
transaction or prohibited contribution
under the REMIC Provisions due to the
negligent performance by the Securitie
