EXHIBIT 4.1
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
U.S. BANK, NATIONAL ASSOCIATION,
TRUSTEE
WELLS FARGO BANK, NATIONAL ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION
SELLER AND COMPANY
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
Structured Asset Mortgage Investments II Inc.
Prime Mortgage Trust, Certificates
Series 2005-5
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01
Definitions
ARTICLE II
Conveyance of Mortgage Loans; Original Issuance of Certificates
Section 2.01
Conveyance of Mortgage Loans to Trustee
Section 2.02
Acceptance of Mortgage Loans and Underlying Certificates by
Trustee
Section 2.03
Assignment of Interest in the Mortgage Loan Purchase
Agreement
Section 2.04
Substitution of Mortgage Loans
Section 2.05
Issuance of Certificates
Section 2.06
Representations and Warranties Concerning the Depositor
ARTICLE III
Administration of the Trust Fund and Servicing of Mortgage
Loans
Section 3.01
Master Servicer and Securities Administrator
Section 3.02
REMIC-Related Covenants
Section 3.03
Monitoring of Servicers
Section 3.04
Fidelity Bond
Section 3.05
Power to Act; Procedures
Section 3.06
Due-on-Sale Clauses; Assumption Agreements
Section 3.07
Release of Mortgage Files
Section 3.08
Documents, Records and Funds in Possession of Master
Servicer to Be Held for Trustee
Section 3.09
Standard Hazard Insurance and Flood Insurance Policies
Section 3.10
Presentment of Claims and Collection of Proceeds
Section 3.11
Maintenance of the Primary Mortgage Insurance Policies
Section 3.12
Trustee to Retain Possession of Certain Insurance Policies
and Documents
Section 3.13
Realization Upon Defaulted Mortgage Loans
Section 3.14
Compensation for the Master Servicer
Section 3.15
REO Property
Section 3.16
Annual Officer's Certificate as to Compliance
Section 3.17
Annual Independent Accountant's Servicing Report
Section 3.18
Reports Filed with Securities and Exchange Commission
Section 3.19
[Reserved]
Section 3.20
UCC
Section 3.21
Optional Purchase of Defaulted Mortgage Loans
ARTICLE IV
Accounts
Section 4.01
Protected Account
Section 4.02
Master Servicer Collection Account
Section 4.03
Permitted Withdrawals and Transfers from the Master Servicer
Collection Account
Section 4.04
Distribution Account
Section 4.05
Permitted Withdrawals and Transfers from the Distribution
Account
ARTICLE V
Certificates
Section 5.01
Certificates
Section 5.02
Registration of Transfer and Exchange of Certificates
Section 5.03
Mutilated, Destroyed, Lost or Stolen Certificates
Section 5.04
Persons Deemed Owners
Section 5.05
Transfer Restrictions on Residual Certificates
Section 5.06
Restrictions on Transferability of Non-Offered Certificates
Section 5.07
ERISA Restrictions
Section 5.08
Rule 144A Information
Section 5.09
Appointment of Paying Agent and Certificate Registrar
ARTICLE VI
Payments to Certificateholders
Section 6.01
Distributions on the Certificates
Section 6.02
[Reserved.]
Section 6.03
Allocation of Losses
Section 6.04
Payments
Section 6.05
Statements to Certificateholders
Section 6.06
Monthly Advances
Section 6.07
Compensating Interest Payments
ARTICLE VII
The Master Servicer-
Section 7.01
Liabilities of the Master Servicer
Section 7.02
Merger or Consolidation of the Master Servicer
Section 7.03
Indemnification of the Trustee, the Master Servicer and the
Securities Administrator
Section 7.04
Limitations on Liability of the Master Servicer and Others
Section 7.05
Master Servicer Not to Resign
Section 7.06
Successor Master Servicer
Section 7.07
Sale and Assignment of Master Servicing
ARTICLE VIII
Default
Section 8.01
Events of Default
Section 8.02
Trustee to Act; Appointment of Successor
Section 8.03
Notification to Certificateholders
Section 8.04
Waiver of Defaults
Section 8.05
List of Certificateholders
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01
Duties of Trustee and Securities Administrator
Section 9.02
Certain Matters Affecting the Trustee and the Securities
Administrator
Section 9.03
Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans
Section 9.04
Trustee and Securities Administrator May Own Certificates
Section 9.05
Trustee's and Securities Administrator's Fees and Expenses
Section 9.06
Eligibility Requirements for Trustee and Securities
Administrator
Section 9.07
Insurance
Section 9.08
Resignation and Removal of the Trustee and Securities
Administrator
Section 9.09
Successor Trustee and Successor Securities Administrator
Section 9.10
Merger or Consolidation of Trustee or Securities
Administrator
Section 9.11
Appointment of Co-Trustee or Separate Trustee
Section 9.12
Federal Information Returns and Reports to
Certificateholders; REMIC Administration
ARTICLE X
Termination
Section 10.01
Termination Upon Repurchase by the Depositor or its Designee
or Liquidation of the Mortgage Loans
Section 10.02
[Reserved]
Section 10.03
Additional Termination Requirements with respect to the
Certificates
ARTICLE XI
Miscellaneous Provisions
Section 11.01
Intent of Parties
Section 11.02
Amendment
Section 11.03
Recordation of Agreement
Section 11.04
Limitation on Rights of Certificateholders
Section 11.05 Acts
of Certificateholders
Section 11.06
Governing Law
Section 11.07
Notices
Section 11.08
Severability of Provisions
Section 11.09
Successors and Assigns
Section 11.10
Article and Section Headings
Section 11.11
Counterparts
Section 11.12
Notice to Rating Agencies
EXHIBITS
Exhibit A-1
-
Form of Class A Certificates
Exhibit A-2 - Form of Class B
Certificates
Exhibit A-3
-
Form of Class PO Certificates
Exhibit A-4
-
Form of Class I-R Certificates
Exhibit A-5
-
Form of Class II-R Certificates
Exhibit A-6
-
Form of Class [_]-X Certificates
Exhibit A-7
-
Form of Class I-XB Certificates
Exhibit B
-
Mortgage Loan Schedule
Exhibit C
-
Reserved
Exhibit D
-
Request for Release of Documents
Exhibit E
-
Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1
-
Form of Investment Letter
Exhibit F-2
-
Form of Rule 144A and Related Matters Certificate
Exhibit F-3
-
Form of Rule 144A Global Certificate to Regulation S
Global Certificate
Exhibit F-4
-
Form of Regulation S Global Certificate to Rule 144A
Global Certificate
Exhibit G
-
Form of Custodial Agreement
Exhibit H-1
-
CitiMortgage Servicing Agreement
Exhibit H-2
-
EMC Servicing Agreement
Exhibit H-3
-
Fifth Third Servicing Agreement
Exhibit H-4
-
GMAC Servicing Agreement
Exhibit H-5
-
GreenPoint Servicing Agreement
Exhibit H-6
-
JPMorgan Chase Servicing Agreement
Exhibit H-7
-
National City Servicing Agreement
Exhibit H-8
-
Navy Federal Servicing Agreement
Exhibit H-9
-
PHH Mortgage Servicing Agreement
Exhibit H-10
-
SunTrust Servicing Agreement
Exhibit H-11
-
WAMU Servicing Agreement
Exhibit H-12
-
Wells Fargo Servicing Agreement
Exhibit I
-
Assignment Agreements
Exhibit J
-
Mortgage Loan Purchase Agreement
<PAGE>
POOLING AND
SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of December 1, 2005,
among
Structured Asset Mortgage Investments II Inc., a Delaware
corporation, as
depositor (the "Depositor"), U.S. Bank National Association, a
national banking
association, as trustee (the "Trustee"), Wells Fargo Bank, National
Association,
as master servicer (in such capacity, the "Master Servicer") and as
securities
administrator (in such capacity, the "Securities Administrator"),
and EMC
Mortgage Corporation, as seller (in such capacity, the "Seller")
and as company
(in such capacity, the "Company").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the
Mortgage
Loans from the Seller. On the Closing Date, the Depositor will sell
the Mortgage
Loans and certain other property to the Trust Fund and receive in
consideration
therefor the Certificates, together evidencing the entire
beneficial ownership
interest in the Trust Funds.
The Trustee on
behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC I Regular Interests will be
designated
"regular interests" in such REMIC, and the Class I-R-1 Certificates
will be
designated the sole class of "residual interests" in such
REMIC.
The Trustee on behalf of the Trust shall make an election for
the
assets constituting REMIC II to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC II Regular Interests will be
designated
"regular interests" in such REMIC, and the Class II-R-1
Certificates will be
designated the sole class of "residual interests" in such
REMIC.
The Trustee on behalf of the Trust shall make an election for
the
assets constituting REMIC III to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC III Regular Interests will be
designated
"regular interests" in such REMIC, and the Class I-R-2 Certificates
will be
designated the sole class of "residual interests" in such
REMIC.
The Trustee on behalf of the Trust shall make an election for
the
assets constituting REMIC IV to be treated for federal income tax
purposes as a
REMIC. On the Startup Day, the REMIC IV Regular Interests will be
designated
"regular interests" in such REMIC, and the Class I-R-3 Certificates
will be
designated the sole class of "residual interests" in such
REMIC.
The Mortgage Loans will have an Outstanding Principal Balance as of
the
Cut-off Date, after deducting all Scheduled Principal due on or
before the
Cut-off Date, of $205,079,914.43. The initial principal amount of
the
Certificates will not exceed such Outstanding Principal
Balance.
The Mortgage Loans have been divided into two Loan Groups,
designated
as Loan Group I and Loan Group II. The Group I Mortgage Loans will
have an
Outstanding Principal Balance as of the Cut-off Date, after
deducting all
Scheduled Principal due on or before the Cut-off Date, of
$82,441,600.62. The
Group II Mortgage Loans will have an Outstanding Principal Balance
as of the
Cut-off Date, after deducting all Scheduled Principal due on or
before the
Cut-off Date, of $122,638,313.81. The Group I Certificates and
Group II
Certificates shall receive distributions solely with respect to the
Group I
Mortgage Loans and Group II Mortgage Loans, respectively.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the
Seller, the
Company and the Trustee agree as follows:
<PAGE>
ARTICLE I
Definitions
Section 1.01 DEFINITIONS.
Whenever used in this Agreement, the following words and
phrases,
unless otherwise expressly provided or unless the context otherwise
requires,
shall have the meanings specified in this Article.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage
Loan,
as applicable, either (x) those customary mortgage servicing
practices of
prudent mortgage servicing institutions that master service
Mortgage Loans of
the same type and quality as such Mortgage Loan in the jurisdiction
where the
related Mortgaged Property is located, to the extent applicable to
the Trustee
or the Master Servicer (except in its capacity as successor to a
Servicer), or
(y) as provided in the applicable Servicing Agreement, to the
extent applicable
to any Servicer, but in no event below the standard set forth in
clause (x).
ACCOUNT: The Master Servicer Collection Account, the
Distribution
Account and the Protected Account as the context may require.
ACCRUED CERTIFICATE INTEREST: For any Certificate (other than the
Class
I-PO Certificates and Class II-PO Certificates) for any
Distribution Date, the
interest accrued during the related Interest Accrual Period at the
applicable
Pass-Through Rate on the Current Principal Amount, or Notional
Amount in the
case of any Interest Only Certificate, of such Certificate
immediately prior to
such Distribution Date, less (i) in the case of a Senior
Certificate (other than
the Class I-PO Certificates and Class II-PO Certificates), such
Certificate's
share of any Net Interest Shortfall from the related Mortgage Loans
and, after
the Cross-Over Date, the interest portion of any Realized Losses on
the related
Mortgage Loans allocated thereto in accordance with Section 6.03(f)
and (ii) in
the case of a Subordinate Certificate, such Certificate's share of
any Net
Interest Shortfall from the related Mortgage Loans and the interest
portion of
any Realized Losses on the related Mortgage Loans allocated thereto
in
accordance with Section 6.02(f). All calculations of interest on
the
Certificates will be made on the basis of on the basis of a 360-day
year
consisting of twelve 30-day months.
ADJUSTMENT AMOUNT: Group I Adjustment Amount or Group II
Adjustment
Amount.
AFFILIATE: As to any Person, any other Person controlling,
controlled
by or under common control with such Person. "Control" means the
power to direct
the management and policies of a Person, directly or indirectly,
whether through
ownership of voting securities, by contract or otherwise.
"Controlled" and
"Controlling" have meanings correlative to the foregoing. The
Trustee may
conclusively presume that a Person is not an Affiliate of another
Person unless
a Responsible Officer of the Trustee has actual knowledge to the
contrary.
AGREEMENT: This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
ALLOCABLE SHARE: Group I Allocable Share or Group II Allocable
Share.
APPLICABLE CREDIT RATING: For any long-term deposit or security,
a
credit rating of AAA in the case of each of S&P and Fitch or
Aaa in the case of
Moody's. For any short-term deposit or security, or a rating of
A-l+ in the case
of each of S&P and Fitch or P-1 in the case of Moody's.
APPLICABLE STATE LAW: For purposes of Section 9.12(d), the
Applicable
State Law shall be (a) the law of the State of New York and (b)
such other state
law whose applicability shall have been brought to the attention of
the
Securities Administrator and the Trustee by either (i) an Opinion
of Counsel
reasonably acceptable to the Securities Administrator and the
Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written
notice from the
appropriate taxing authority as to the applicability of such state
law.
APPRAISED VALUE: For any Mortgaged Property related to a Mortgage
Loan,
the amount set forth as the appraised value of such Mortgaged
Property in an
appraisal made for the mortgage originator in connection with its
origination of
the related Mortgage Loan.
ASSIGNMENT AGREEMENTS: The agreements attached hereto as Exhibit
I,
whereby the related Servicing Agreements were assigned to the
Trustee for the
benefit of the Holders of the Certificateholders.
ASSIGNMENT OF PROPRIETARY LEASE: With respect to a Cooperative
Loan,
the assignment of the related Cooperative Lease from the Mortgagor
to the
originator of the Cooperative Loan.
AVAILABLE FUNDS: Group I Available Funds or Group II Available
Funds.
AVERAGE LOSS SEVERITY PERCENTAGE: With respect to any
Distribution
Date, the percentage equivalent of a fraction, the numerator of
which is the sum
of the Loss Severity Percentages for each Mortgage Loan which had a
Realized
Loss and the denominator of which is the number of Mortgage Loans
which had
Realized Losses.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended
as
codified in 11 U.S.C. ss.ss. 101-1330.
BANKRUPTCY COVERAGE TERMINATION DATE: Group I Bankruptcy
Coverage
Termination Date or Group II Bankruptcy Coverage Termination
Date.
BANKRUPTCY LOSS
AMOUNT: Group I Bankruptcy Loss Amount or Group II
Bankruptcy Loss Amount.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any
Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan
as reported by
the applicable Servicer to the Master Servicer.
BOOK-ENTRY CERTIFICATES: Initially, all Classes of the Senior
Certificates (other than the Residual Certificates) and the Offered
Subordinate
Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or
(ii) a
day on which the New York Stock Exchange or Federal Reserve is
closed or on
which banking institutions in the jurisdiction in which the
Trustee, the Master
Servicer, any Servicer or the Securities Administrator is located
are authorized
or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the Certificates executed and countersigned
by
the Certificate Registrar substantially in the form of Exhibits A-1
through A-7
attached hereto.
CERTIFICATES DISTRIBUTION REPORT: The report prepared by the
Securities
Administrator with respect to the Certificates and the Mortgage
Loans pursuant
to Section 6.05(a).
CERTIFICATEHOLDER: A Holder of a Certificate.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its
nominee.
CERTIFICATE REGISTER: The register maintained pursuant to Section
5.02.
CERTIFICATE REGISTRAR: The Securities Administrator or any
successor
certificate registrar appointed hereunder.
CITIMORTGAGE:
CitiMortgage, Inc., or its successor in interest.
CITIMORTGAGE SERVICING AGREEMENT: The Mortgage Loan Purchase
and
Servicing Agreement, dated as of August 1, 2003, between the Seller
and
CitiMortgage, attached hereto as Exhibit H-1, and as modified by
the related
Assignment Agreement.
CLASS: With respect to the Certificates, I-A-1, I-A-2, I-A-3,
I-PO,
I-X, I-XB, I-R-1, I-R-2, I-R-3, I-B-1, I-B-2, I-B-3, I-B-4, I-B-5,
I-B-6,
II-A-1, II-A-2, II-A-3, II-A-4, II-X, II-PO, II-R-1, II-B-1,
II-B-2, II-B-3,
II-B-4, II-B-5 and II-B-6.
CLASS I-A CERTIFICATES: Any of the Class I-A-1, Class I-A-2 and
Class
I-A-3 Certificates.
CLASS I-R CERTIFICATES: The Class I-R-1, Class I-R-2 and Class
I-R-3
Certificates.
CLASS I-R DEPOSIT: The $150 deposit into the Distribution Account
by
the Depositor on the Closing Date to pay the Class I-R Certificates
in
accordance with Section 6.01(a) on the Distribution Date occurring
in January
2006.
CLASS I-PO CERTIFICATE CASH SHORTFALL: For any Distribution Date,
the
difference between (i) principal distributable to the Class I-PO
Certificates in
accordance with priority FOURTH of clause (i) under subsection
6.01(a)(I), and
(ii) principal actually distributed to the Class I-PO Certificates
after giving
effect to clause (v) under subsection 6.01(a)(I).
CLASS II-PO CERTIFICATE CASH SHORTFALL: For any Distribution Date,
the
difference between (i) principal distributable to the Class II-PO
Certificates
in accordance with priority FOURTH of clause (i) under subsection
6.01(a)(II),
and (ii) principal actually distributed to the Class II-PO
Certificates after
giving effect to clause (v) under subsection 6.01(a)(II).
CLASS I-PO CERTIFICATE DEFERRED AMOUNT: As to each Distribution
Date
through the Group I Cross-Over Date, the aggregate of all amounts
allocable on
such dates to the Class I-PO Certificates in respect of the
principal portion of
Realized Losses in respect of Discount Mortgage Loans in Subgroup
I-1 and the
Class I-PO Certificate Cash Shortfall and all amounts previously
allocated in
respect of such losses and such shortfalls to the Class I-PO
Certificates, and
not distributed on prior Distribution Dates.
CLASS II-PO CERTIFICATE DEFERRED AMOUNT: As to each Distribution
Date
through the Group II Cross-Over Date, the aggregate of all amounts
allocable on
such dates to the Class II-PO Certificates in respect of the
principal portion
of Realized Losses in respect of Discount Mortgage Loans in Loan
Group II and
the Class II-PO Certificate Cash Shortfall and all amounts
previously allocated
in respect of such losses and such shortfalls to the Class II-PO
Certificates,
and not distributed on prior Distribution Dates.
CLASS I-PO CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT: The Class
I-PO
Certificates shall be entitled to distributions from Subgroup I-1.
For each
Class of Class I-PO Certificates with respect to each Distribution
Date will be
an amount equal to the sum of:
(i) the related PO Percentage of all scheduled payments of
principal due on each Discount Mortgage Loan in Subgroup I-1 on
the
related Due Date as specified in the amortization schedule at the
time
applicable thereto (after adjustment for previous principal
prepayments
but before any adjustment to such amortization schedule by reason
of
any bankruptcy or similar proceeding or any moratorium or
similar
waiver or grace period);
(ii) the related PO Percentage of the Scheduled Principal
Balance of each Discount Mortgage Loan in Subgroup I-1 which was
the
subject of a prepayment in full received by the Master Servicer
during
the applicable Prepayment Period;
(iii) the related PO Percentage of all partial prepayments of
principal of each Discount Mortgage Loan in the related
Subgroup
received during the applicable Prepayment Period;
(iv) the lesser of (a) the related PO Percentage of the sum of
(A) all Net Liquidation Proceeds and Subsequent Recoveries
allocable to
principal on each Discount Mortgage Loan in Subgroup I-1 which
became a
Liquidated Mortgage Loan during the related Prepayment Period
(other
than a Discount Mortgage Loan described in immediately following
clause
(B)) and (B) the Scheduled Principal Balance of each such
Discount
Mortgage Loan in Subgroup I-1 purchased by an insurer from the
Trustee
during the related Prepayment Period pursuant to the related
Primary
Mortgage Insurance Policy, if any, or otherwise; and (b) the
related PO
Percentage of the sum of (A) the Scheduled Principal Balance of
each
Discount Mortgage Loan in Subgroup I-1 which became a
Liquidated
Mortgage Loan during the related Prepayment Period (other than
a
Discount Mortgage Loan described in immediately clause (B)) and (B)
the
Scheduled Principal Balance of each such Mortgage Loan in Subgroup
I-1
that was purchased by an insurer from the Trustee during the
related
Prepayment Period pursuant to the related Primary Mortgage
Insurance
Policy, if any, or otherwise; and
(v) the related PO Percentage of the sum of (a) the Scheduled
Principal Balance of each Discount Mortgage Loan in Subgroup I-1
which
was repurchased by the Seller in connection with such Distribution
Date
and (b) the difference, if any, between the Scheduled Principal
Balance
of a Discount Mortgage Loan in Subgroup I-1 that has been replaced
by
the Seller with a substitute Discount Mortgage Loan pursuant to
the
Agreement in connection with such Distribution Date and the
Scheduled
Principal Balance of such substitute Discount Mortgage Loan.
CLASS II-PO CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT: The Class
II-PO
Certificates shall be entitled to distributions from Loan Group II.
For each
Class of Class II-PO Certificates with respect to each Distribution
Date will be
an amount equal to the sum of:
(i) the related PO Percentage of all scheduled payments of
principal
due on each Discount Mortgage Loan in Loan Group II on the
related Due Date as specified in the amortization schedule at the
time
applicable thereto (after adjustment for previous principal
prepayments
but before any adjustment to such amortization schedule by reason
of
any bankruptcy or similar proceeding or any moratorium or
similar
waiver or grace period);
(ii) the related PO Percentage of the Scheduled Principal
Balance of each Discount Mortgage Loan in Loan Group II which was
the
subject of a prepayment in full received by the related Master
Servicer
during the applicable Prepayment Period;
(iii) the related PO Percentage of all partial prepayments of
principal of each Discount Mortgage Loan in Loan Group II
received
during the applicable Prepayment Period;
(iv) the lesser of (a) the related PO Percentage of the sum of
(A) all Net Liquidation Proceeds allocable to principal on each
Discount Mortgage Loan in Loan Group II which became a
Liquidated
Mortgage Loan during the related Prepayment Period (other than
a
Discount Mortgage Loan described in immediately following clause
(B))
and (B) the Scheduled Principal Balance of each such Discount
Mortgage
Loan in Loan Group II purchased by an insurer from the Trustee
during
the related Prepayment Period pursuant to the related primary
mortgage
insurance policy, if any, or otherwise; and (b) the related PO
Percentage of the sum of (A) the Scheduled Principal Balance of
each
Discount Mortgage Loan in Loan Group II which became a
Liquidated
Mortgage Loan during the related Prepayment Period (other than
a
Discount Mortgage Loan described in immediately following clause
(B))
and (B) the Scheduled Principal Balance of each such Mortgage Loan
in
Loan Group II that was purchased by an insurer from the Trustee
during
the related Prepayment Period pursuant to the related primary
mortgage
insurance policy, if any, or otherwise; and
(v) the related PO Percentage of the sum of (a) the Scheduled
Principal Balance of each Discount Mortgage Loan in Loan Group II
which
was repurchased by the Seller in connection with such distribution
date
and (b) the difference, if any, between the Scheduled Principal
Balance
of a Discount Mortgage Loan in Loan Group II that has been replaced
by
the Seller with a substitute Discount Mortgage Loan pursuant to
the
Agreement in connection with such distribution date and the
Scheduled
Principal Balance of such substitute Discount Mortgage Loan.
CLASS II-R DEPOSIT: The $100 deposit into the Distribution Account
by
the Depositor on the Closing Date to pay the Class II-R-1
Certificates in
accordance with Section 6.01(a) on the Distribution Date occurring
in January
2006.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: For a Class of related
Subordinate Certificates for any Distribution Date, the Class
Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a
percentage),
the numerator of which is the aggregate Current Principal Amount of
such Class
and each Class of the related Subordinate Certificates subordinate
thereto, if
any, and the denominator of which is the Scheduled Principal
Balance of all of
the related Mortgage Loans as of the related Due Date, equals or
exceeds such
percentage calculated as of the Closing Date.
CLASS R CERTIFICATES: The Class I-R-1, Class I-R-2, Class I-R-3
and
Class II-R-1 Certificates.
CLASS X CERTIFICATES: The Class I-X Certificates and Class II-X
Certificates.
CLEARING AGENCY: An organization registered as a "clearing
agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934,
as amended,
which initially shall be DTC, Clearstream, Luxembourg and
Euroclear.
CLEARSTREAM, LUXEMBOURG: Clearstream Banking, a societe anonyme,
a
limited liability company organized under the laws of
Luxembourg.
CLOSING DATE: December 29, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST PAYMENT: As defined in Section 6.06.
COOPERATIVE: A private, cooperative housing corporation which owns
or
leases land and all or part of a building or buildings, including
apartments,
spaces used for commercial purposes and common areas therein and
whose board of
directors authorizes, among other things, the sale of Cooperative
Stock.
COOPERATIVE APARTMENT: A dwelling unit in a multi-dwelling
building
owned or leased by a Cooperative, which unit the Mortgagor has an
exclusive
right to occupy pursuant to the terms of a proprietary lease or
occupancy
agreement.
COOPERATIVE LEASE: With respect to a Cooperative Loan, the
proprietary
lease or occupancy agreement with respect to the Cooperative
Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock,
which lease or
agreement confers an exclusive right to the holder of such
Cooperative Stock to
occupy such apartment.
COOPERATIVE LOAN: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment of the Cooperative Lease, (iv) financing statements and
(v) a stock
power (or other similar instrument), and ancillary thereto, a
recognition
agreement between the Cooperative and the originator of the
Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant
to Section
2.01 and are from time to time held as part of the Trust Fund.
COOPERATIVE STOCK: With respect to a Cooperative Loan, the
single
outstanding class of stock, partnership interest or other ownership
instrument
in the related Cooperative.
COOPERATIVE STOCK CERTIFICATE: With respect to a Cooperative Loan,
the
stock certificate or other instrument evidencing the related
Cooperative Stock.
CORPORATE TRUST OFFICE: The office of the Trustee at which at
any
particular time its corporate trust business is administered, which
office, at
the date of the execution of this Agreement, is located at US Bank
Corporate
Trust Services, One Federal Street, 3rd Floor, Boston,
Massachusetts 02110,
Attention: Corporate Trust Services/PRIME 2005-5, or such other
address as the
Trustee may designate from time to time. With respect to the
Certificate
Registrar and the presentment of Certificates for registration of
transfer,
exchange or final payment, Wells Fargo Bank, National Association,
its offices
located at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479,
Attention: Corporate Trust/PRIME 2005-5, and for all other
purposes, its offices
located at P.O. Box 98, Columbia, Maryland 21046 (or, for overnight
deliveries,
9062 Old Annapolis Road, Columbia, Maryland 21045), Attention:
Corporate
Trust/Prime 2005-5.
CORRESPONDING CERTIFICATES: With respect to each REMIC II
Regular
Interest and each REMIC III Regular Interest, the Class with the
same
designation.
CROSS-OVER DATE: Group I Cross-Over Date or Group II Cross-Over
Date.
CURRENT PRINCIPAL AMOUNT: With respect to any Certificate (other
than
an Interest Only Certificate) as of any Distribution Date, the
initial principal
amount of such Certificate plus any Subsequent Recoveries added to
the Current
Principal Amount of such Certificate pursuant to Section 6.01(h),
and reduced by
(i) all amounts distributed on previous Distribution Dates on such
Certificate
with respect to principal, (ii) the principal portion of all
Realized Losses
allocated prior to such Distribution Date to such Certificates,
taking account
of the Loss Allocation Limitation and (iii) in the case of a
Subordinate
Certificate, such Certificate's pro rata share, if any, of the
related
applicable Subordinate Certificate Writedown Amount for previous
Distribution
Dates. With respect to any Class of Certificates (other than an
Interest Only
Certificate), the Current Principal Amount thereof will equal the
sum of the
Current Principal Amounts of all Certificates in such Class.
Notwithstanding the
foregoing, solely for purposes of giving consents, directions,
waivers,
approvals, requests and notices, each of the Residual Certificates
after the
Distribution Date on which they each receive the distribution of
the last dollar
of their respective original principal amount shall be deemed to
have Current
Principal Amounts equal to their respective Current Principal
Amounts on the day
immediately preceding such Distribution Date.
CUSTODIAL AGREEMENT: An agreement, dated as of the Closing Date
among
the Depositor, the Master Servicer, the Trustee and the Custodian
in
substantially the form of Exhibit G hereto.
CUSTODIAN: Wells Fargo Bank, National Association, or any
successor
custodian appointed pursuant to the provisions hereof and of the
Custodial
Agreement.
CUT-OFF DATE: December 1, 2005.
CUT-OFF DATE BALANCE: An amount equal to $82,441,600.62 with
respect to
Loan Group I and $122,638,313.81 with respect to Loan Group II.
DEBT SERVICE REDUCTION: Any reduction of the Scheduled Payments
which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a
result of any
proceeding under the Bankruptcy Code or any other similar state law
or other
proceeding.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation
of
the Mortgaged Property by a court of competent jurisdiction in an
amount less
than the then outstanding indebtedness under the Mortgage Loan,
which valuation
results from a proceeding initiated under the Bankruptcy Code or
any other
similar state law or other proceeding.
DEPOSITOR: Structured Asset Mortgage Investments II Inc., a
Delaware
corporation, or its successors in interest.
DEPOSITORY: The Depository Trust Company, the nominee of which is
Cede
& Co., or any successor thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection
5.01(a)
hereof.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
DESIGNATED DEPOSITORY INSTITUTION: A depository institution
(commercial
bank, federal savings bank, mutual savings bank or savings and loan
association)
or trust company (which may include the Trustee), the deposits of
which are
fully insured by the FDIC to the extent provided by law.
DETERMINATION DATE: With respect to each Mortgage Loan, the
Determination Date as defined in the related Servicing
Agreement.
DISCOUNT MORTGAGE LOAN: With respect to the Class I-PO
Certificates,
any Group I Mortgage Loan with a Net Mortgage Rate less than 7.00%
per annum,
and with respect to the Class II-PO Certificates, any Group II
Mortgage Loan
with a Net Mortgage Rate less than 5.50% per annum.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United
States,
any State or political subdivision thereof, any possession of the
United States,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for the Freddie Mac or any successor thereto, a
majority of its
board of directors is not selected by such governmental unit), (ii)
any foreign
government, any international organization, or any agency or
instrumentality of
any of the foregoing, (iii) any organization (other than certain
farmers'
cooperatives described in Section 521 of the Code) which is exempt
from the tax
imposed by Chapter 1 of the Code (including the tax imposed by
Section 511 of
the Code on unrelated business taxable income), (iv) rural electric
and
telephone cooperatives described in Section 1381(a)(2)(C) of the
Code or (v) any
other Person so designated by the Trustee and the Certificate
Registrar based
upon an Opinion of Counsel that the holding of an ownership
interest in a
Residual Certificate by such Person may cause any REMIC contained
in the Trust
or any Person having an Ownership Interest in the Residual
Certificate (other
than such Person) to incur a liability for any federal tax imposed
under the
Code that would not otherwise be imposed but for the transfer of an
Ownership
Interest in a Residual Certificate to such Person. The terms
"United States,"
"State" and "international organization" shall have the meanings
set forth in
Section 7701 of the Code or successor provisions.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated
"Wells Fargo
Bank, National Association, as Paying Agent, f/b/o holders of
Structured Asset
Mortgage Investments II Inc., Prime Mortgage Trust, Certificates,
Series 2005-5
- Distribution Account." The Distribution Account shall be an
Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to
each
Distribution Date.
DISTRIBUTION DATE: The 25th day of any month, beginning in
January
2006, or, if such 25th day is not a Business Day, the immediately
following
Business Day.
DTC CUSTODIAN: Wells Fargo, National Association, or its successors
in
interest as custodian for the Depository.
DUE DATE: With respect to each Mortgage Loan, the date in each
month on
which its Scheduled Payment is due if such due date is the first
day of a month
and otherwise is deemed to be the first day of the following month
or such other
date specified in the related Servicing Agreement.
DUE PERIOD: With respect to any Distribution Date and each
Mortgage
Loan, the period commencing on the second day of the month
preceding the month
in which the Distribution Date occurs and ending at the close of
business on the
first day of the month in which the Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) a segregated account maintained with
a
federal or state chartered depository institution (A) the
short-term obligations
of which are rated A-1 or better by Standard & Poor's, F-1 by
Fitch and P-1 by
Moody's at the time of any deposit therein or (B) insured by the
FDIC (to the
limits established by such Corporation), the uninsured deposits in
which account
are otherwise secured such that, as evidenced by an Opinion of
Counsel (obtained
by the Person requesting that the account be held pursuant to this
clause (i))
delivered to the Trustee prior to the establishment of such
account, the
Certificateholders will have a claim with respect to the funds in
such account
and a perfected first priority security interest against any
collateral (which
shall be limited to Permitted Investments, each of which shall
mature not later
than the Business Day immediately preceding the Distribution Date
next following
the date of investment in such collateral or the Distribution Date
if such
Permitted Investment is an obligation of the institution that
maintains the
Distribution Account) securing such funds that is superior to
claims of any
other depositors or general creditors of the depository institution
with which
such account is maintained, (ii) a segregated trust account or
accounts
maintained with a federal or state chartered depository institution
or trust
company with trust powers acting in its fiduciary capacity or (iii)
a segregated
account or accounts of a depository institution acceptable to the
Rating
Agencies (as evidenced in writing by the Rating Agencies that use
of any such
account as the Distribution Account will not have an adverse effect
on the
then-current ratings assigned to the Classes of Certificates then
rated by the
Rating Agencies determined without regard to the Policy). Eligible
Accounts may
bear interest.
EMC: EMC Mortgage Corporation.
EMC SERVICING AGREEMENT: With respect to Mortgage Loans serviced
by
EMC, the Servicing Agreement dated as of December 1, 2005, between
the Depositor
and EMC, as attached hereto as Exhibit H-2 and as modified by the
related
Assignment Agreement.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EUROCLEAR: Euroclear Clearance System, Societe Cooperative, a
Belgium
cooperative cooperation.
EUROCLEAR OPERATOR: Euroclear Bank S.A./N.V., as operator of
the
Euroclear system.
EVENT OF DEFAULT: An event of default described in Section
8.01.
EXCESS BANKRUPTCY LOSS: Any Bankruptcy Loss, or portion thereof
(i)
occurring after the related Bankruptcy Coverage Termination Date or
(ii) if on
or prior to such date, in excess of the then-applicable Bankruptcy
Loss Amount.
EXCESS FRAUD LOSS: Any Fraud Loss or portion thereof (i)
occurring
after the related Fraud Coverage Termination Date with respect
thereto or (ii)
if on or prior to such date, in excess of the then-applicable Fraud
Loss Amount.
EXCESS LOSS: Any Excess Fraud Loss, Excess Bankruptcy Loss,
Excess
Special Hazard Loss or Extraordinary Loss.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is
not
required by law to be paid to the related Mortgagor, the amount, if
any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage
Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan
and accrued
but unpaid interest at the related Mortgage Interest Rate through
the last day
of the month in which the related Liquidation Date occurs, plus
(ii) related
Liquidation Expenses.
EXCESS SPECIAL HAZARD LOSS: Any Special Hazard Loss occurring after
the
related Special Hazard Termination Date.
EXTRAORDINARY LOSS: Any Realized Loss resulting from damage to
a
Mortgaged Property that was occasioned by war, civil insurrection,
certain
governmental actions, nuclear reaction and certain other risks.
FANNIE MAE: Federal National Mortgage Association or any
successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor
thereto.
FIFTH THIRD: Fifth Third Mortgage Company, or its successor in
interest.
FIFTH THIRD SERVICING AGREEMENT: The Purchase, Warranties and
Servicing
Agreement, dated as of September 1, 2002, between the Seller and
Fifth Third,
attached hereto as Exhibit H-3, and as modified by the related
Assignment
Agreement.
FINAL CERTIFICATION: The certification substantially in the form
of
Exhibit Three to the Custodial Agreement.
FISCAL QUARTER: December 1 to February 29 (or the last day in
such
month), March 1 to May 31, June 1 to August 31, or September 1 to
November 30,
as applicable.
FITCH: Fitch, Inc. and its successors in interest.
-----
FRACTIONAL UNDIVIDED INTEREST: With respect to any Class of
Certificates, the fractional undivided interest evidenced by any
Certificate of
such Class, the numerator of which is the Current Principal Amount,
or Notional
Amount in the case of the Interest Only Certificates, of such
Certificate and
the denominator of which is the Current Principal Amount, or
Notional Amount in
the case of the Interest Only Certificates, of such Class. With
respect to the
Certificates in the aggregate, the fractional undivided interest
evidenced by
(i) the Residual Certificates will be deemed to equal 0.25%, (ii)
each Class of
Interest Only Certificates will be deemed to equal 1.0% multiplied
by a
fraction, the numerator of which is the Notional Amount of such
Certificate and
the denominator of which is the aggregate Notional Amount of its
respective
Class and (iii) a Certificate of any other Class will be deemed to
equal the
fractional undivided interest remaining after taking into account
clauses (i)
and (ii) multiplied by a fraction, the numerator of which is the
Current
Principal Amount of such Certificate and the denominator of which
is the
aggregate Current Principal Amount of all the Certificates;
provided, however,
the percentage in clause (iii) above shall be increased by 1.0%
upon the
retirement of each Class of Interest Only Certificates. Matters
which solely
affect the Group I Certificates or Group II Certificates will be
voted on solely
by the related Classes.
FRAUD COVERAGE TERMINATION DATE: Group I Fraud Coverage
Termination
Date or Group II Fraud Coverage Termination Date.
FRAUD LOSS: With respect to any Mortgage Loan, any Realized
Loss
attributable to fraud in the origination of such Mortgage Loan, as
reported by
the applicable Servicer to the Master Servicer.
FRAUD LOSS AMOUNT: Group I Fraud Loss Amount or Group II Fraud
Loss
Amount.
FREDDIE MAC:
Freddie Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GLOBAL CERTIFICATE: Any Non-Offered Certificate registered in the
name
of the Depository or its nominee, beneficial interests in which are
reflected on
the books of the Depository or on the books of a Person maintaining
an account
with such Depository (directly or as an indirect participant in
accordance with
the rules of such depository).
GMAC: GMAC Mortgage
Corporation, or its successor in interest.
GMAC SERVICING AGREEMENT: The Servicing Agreement, dated as of
November
1, 2004, between the Depositor and GMAC, attached hereto as Exhibit
H-4, and as
modified by the related Assignment Agreement.
GREENPOINT: GreenPoint Mortgage Funding, Inc., or its successor
in
interest.
GREENPOINT SERVICING AGREEMENT: The Purchase, Warranties and
Servicing
Agreement, dated as of September 1, 2003, between the Seller and
GreenPoint,
attached hereto as Exhibit H-5, and as modified by the related
Assignment
Agreement.
GROUP I ADJUSTMENT AMOUNT: For each anniversary of the Cut-off
Date,
the amount, if any, by which the Group I Special Hazard Loss Amount
(without
giving effect to the deduction of the Group I Adjustment Amount for
such
anniversary) exceeds the lesser of (A) an amount calculated by the
Seller and
approved by the related Rating Agencies, which amount shall not be
less than
$500,000, and (B) the greater of (x) 1.0% (or if greater than 1.0%,
the highest
percentage of Group I Mortgage Loans by principal balance secured
by Mortgaged
Properties in any California zip code) of the outstanding principal
balance of
all Group I Mortgage Loans on the Distribution Date immediately
preceding such
anniversary and (y) three times the outstanding principal balance
of the Group I
Mortgage Loan which has the largest outstanding principal balance
on the
Distribution Date immediately preceding such anniversary.
GROUP I ALLOCABLE SHARE: With respect to any Class of Group I
Subordinate Certificates (other than the Class I-XB Certificates)
on any
Distribution Date will generally equal such Class's pro rata share
(based on the
Current Principal Amount of each Class entitled thereto) of the sum
of each of
the components of the definition of Group I Subordinate Optimal
Principal Amount
for each Subgroup; provided, that except as described in the
succeeding
sentence, no Class of Group I Subordinate Certificates (other than
the Class
I-XB Certificates and Class of Group I Subordinate Certificates
outstanding with
the lowest numerical designation) shall be entitled on any
Distribution Date to
receive distributions pursuant to clauses (2), (3) and (5) of the
definition of
Group I Subordinate Optimal Principal Amount unless the Class
Prepayment
Distribution Trigger for the related Class is satisfied for such
Distribution
Date. If on any Distribution Date the Current Principal Amount of
any Class of
Group I Subordinate Certificates (other than the Class I-XB
Certificates) for
which the related Class Prepayment Distribution Trigger was
satisfied on such
Distribution Date is reduced to zero, any amounts distributable to
such Class
pursuant to clauses (2), (3) and (5) of the definition of Group I
Subordinate
Optimal Principal Amount, to the extent of such Class's remaining
Group I
Allocable Share, shall be distributed to the remaining Classes of
Group I
Subordinate Certificates (other than the Class I-XB Certificates)
in reduction
of their respective Current Principal Amounts, sequentially, in the
order of
their numerical Class designations.
GROUP I AVAILABLE FUNDS: For any Distribution Date and Loan Group
I, an
amount which generally includes, (1) all previously undistributed
payments on
account of principal (including the principal portion of Monthly
Payments,
Principal Prepayments and the principal amount of Net Liquidation
Proceeds) and
all previously undistributed payments on account of interest
received after the
Cut-Off Date and on or prior to the related Determination Date with
respect to
the Group I Mortgage Loans, (2) any Monthly Advances and
Compensating Interest
made by the Master Servicer or a Servicer for such Distribution
Date in respect
of the Group I Mortgage Loans and (3) any amounts reimbursed by the
Master
Servicer in connection with losses on certain eligible investments
in connection
with funds attributable to Loan Group I, net of Loan Group I's
allocable portion
of fees payable to, and amounts reimbursable to, the Servicers, the
Master
Servicer, the Securities Administrator, the Trustee and the
Custodian as
provided in this Agreement and the Custodial Agreement and
investment earnings
on amounts on deposit in the Master Servicer Collection Account and
the
Distribution Account in connection with funds attributable to Loan
Group I.
GROUP I BANKRUPTCY COVERAGE TERMINATION DATE: The Distribution
Date
upon which the Group I Bankruptcy Loss Amount has been reduced to
zero or a
negative number (or the Group I Cross-Over Date, if earlier).
GROUP I BANKRUPTCY LOSS AMOUNT: On each Distribution Date,
$150,000,
subject to reduction as described in this Agreement, minus the
aggregate amount
of previous Bankruptcy Losses with respect to the Group I Mortgage
Loans.
GROUP I CERTIFICATES: The Group I Offered Certificates and Group
I
Non-Offered Certificates.
GROUP I CROSS-OVER DATE: The Distribution Date on which the
Current
Principal Amounts of the Group I Subordinate Certificates are
reduced to zero.
GROUP I FRAUD COVERAGE TERMINATION DATE: The Distribution Date
upon
which the Group I Fraud Loss Amount has been reduced to zero or a
negative
number (or the Group I Cross-Over Date, if earlier).
GROUP I FRAUD LOSS AMOUNT: Upon the initial issuance of the Group
I
Certificates and as of any Distribution Date prior to the first
anniversary of
the Cut-Off Date, 3% of the aggregate Scheduled Principal Balances
of the Group
I Mortgage Loans. As of any Distribution Date from the first and
through the
second anniversary of the Cut-off Date, (1) the lesser of (a) the
Group I Fraud
Loss Amount as of the most recent anniversary of the Cut-off Date
and (b) 2% of
the aggregate outstanding principal balance of all Group I Mortgage
Loans as of
the most recent anniversary of the Cut-off Date minus (2) the Fraud
Losses that
would have been allocated to the Group I Subordinate Certificates
in the absence
of the Group I Loss Allocation Limit since the most recent
anniversary of the
Cut-off Date. As of any Distribution Date from the second and
through the fifth
anniversary of the Cut-off Date, (1) the lesser of (a) the Group I
Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and
(b) 1% of the
aggregate outstanding principal balance of all Group I Mortgage
Loans as of the
most recent anniversary of the Cut-off Date minus (2) the Fraud
Losses that
would have been allocated to the Group I Subordinate Certificates
in the absence
of the Group I Loss Allocation Limit since the most recent
anniversary of the
Cut-off Date. After the fifth anniversary of the Cut-off Date, the
Group I Fraud
Loss Amount shall be zero.
GROUP I LOSS ALLOCATION LIMIT: The meaning specified in
Subsection
6.03(a)(iv) hereof.
GROUP I MORTGAGE LOANS: The Mortgage Loans included as part of
Loan
Group I on the Mortgage Loan Schedule.
GROUP I NON-OFFERED CERTIFICATES: The Class I-B-4, Class I-B-5
and
Class I-B-6 Certificates.
GROUP I OFFERED CERTIFICATES: The Group I Senior Certificates,
Group I
Offered Subordinate Certificates and Class I-R Certificates.
GROUP I OFFERED SUBORDINATE CERTIFICATES: The Class I-XB, I-B-1,
Class
I-B-2 and Class I-B-3 Certificates.
GROUP I ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The aggregate
Current
Principal Amount of the Group I Subordinate Certificates as of the
Closing Date.
GROUP I SENIOR CERTIFICATES: The Class I-A-1, Class I-A-2, Class
I-A-3,
Class I-PO and Class I-X Certificates.
GROUP I SPECIAL HAZARD LOSS AMOUNT: Upon the initial issuance of
the
Group I Certificates, approximately $2,878,065. As of any
Distribution Date, the
Group I Special Hazard Loss Amount will equal the initial Group I
Special Hazard
Loss Amount, minus the sum of (i) the aggregate amount of Special
Hazard Losses
that would have been previously allocated to the Group I
Subordinate
Certificates in the absence of the Group I Loss Allocation Limit
and (ii) the
Group I Adjustment Amount.
GROUP I SPECIAL HAZARD TERMINATION DATE: The Distribution Date
upon
which the Group I Special Hazard Loss Amount has been reduced to
zero or a
negative number (or the Group I Cross-Over Date, if earlier).
GROUP I SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: With respect to
the
Group I Subordinate Certificates, the amount by which (x) the sum
of the Current
Principal Amounts of the Group I Certificates (after giving effect
to the
distribution of principal and the allocation of Realized Losses in
reduction of
the Current Principal Amounts of the Group I Certificates, other
than the Class
I-X Certificates and Class I-XB Certificates, on such Distribution
Date) exceeds
(y) the Scheduled Principal Balances of the Group I Mortgage Loans
on the Due
Date related to such Distribution Date.
GROUP I SUBORDINATE CERTIFICATES: The Group I Offered
Subordinate
Certificates and Group I Non-Offered Certificates.
GROUP I SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: With respect to the
Group
I Subordinate Certificates (other than the Class I-XB Certificates)
and each
Distribution Date, an amount equal to the sum of the following from
each
Subgroup (but in no event greater than the aggregate Current
Principal Amount of
the Group I Subordinate Certificates immediately prior to such
Distribution
Date):
(i) the Group I Subordinate Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on
each Group I
Mortgage Loan in the related Subgroup on the related Due Date, as
specified in
the amortization schedule at the time applicable thereto (after
adjustment for
previous principal prepayments but before any adjustment to such
amortization
schedule by reason of any bankruptcy or similar proceeding or any
moratorium or
similar waiver or grace period);
(ii) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of the Scheduled Principal Balance of
each Group I
Mortgage Loan in the related Subgroup which was the subject of a
prepayment in
full received by the Master Servicer during the applicable
Prepayment Period;
(iii) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of all partial prepayments of principal
received
during the applicable Prepayment Period for each Group I Mortgage
Loan in the
related Subgroup;
(iv) the excess, if any, of (a) the Net Liquidation Proceeds
allocable to principal received during the related Prepayment
Period in respect
of each Liquidated Mortgage Loan in the related Subgroup over (b)
the sum of the
amounts distributable to the holders of the Group I Senior
Certificates pursuant
to clause (4) of the definition of "Subgroup Principal Distribution
Amount" and
"Class I-PO Certificate Principal Distribution Amount" on such
Distribution
Date;
(v) the Group I Subordinate Prepayment Percentage of the
related Non-PO Percentage of the sum of (a) the Scheduled Principal
Balance of
each Group I Mortgage Loan in the related Subgroup which was
repurchased by the
Seller in connection with such Distribution Date and (b) the
difference, if any,
between the Scheduled Principal Balance of a Group I Mortgage Loan
in the
related Subgroup that has been replaced by the Seller with a
substitute Group I
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement in
connection
with such Distribution Date and the Scheduled Principal Balance of
such
substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Current Principal
Amounts of the Group I Senior Certificates (other than the Class
I-X
Certificates and Class I-PO Certificates) have all been reduced to
zero, 100% of
any Subgroup Principal Distribution Amount.
GROUP I SUBORDINATE PERCENTAGE: As of any Distribution Date and
with
respect to any Subgroup, 100% minus the related Subgroup Senior
Percentage for
the Group I Senior Certificates related to such Subgroup. The
initial Group I
Subordinate Percentage for each Subgroup will be equal to
approximately 6.58%
per annum for Subgroup I-1, 6.58% per annum for Subgroup I-2 and
6.57% per annum
for Subgroup I-3.
GROUP I SUBORDINATE PREPAYMENT PERCENTAGE: As of any Distribution
Date
and with respect to any Subgroup, 100% minus the related Subgroup
Senior
Prepayment Percentage for such Subgroup, except that on any
Distribution Date
after the Current Principal Amount of each Class of Group I Senior
Certificates
have each been reduced to zero, the Group I Subordinate Prepayment
Percentage
for the Group I Subordinate Certificates with respect to such
Subgroup will
equal 100%.
GROUP II
ADJUSTMENT AMOUNT: For each anniversary of the Cut-off Date,
the amount, if any, by which the Group II Special Hazard Loss
Amount (without
giving effect to the deduction of the Group II Adjustment Amount
for such
anniversary) exceeds the lesser of (A) an amount calculated by the
Seller and
approved by the related Rating Agencies, which amount shall not be
less than
$500,000, and (B) the greater of (x) 1.0% (or if greater than 1.0%,
the highest
percentage of Group II Mortgage Loans by principal balance secured
by Mortgaged
Properties in any California zip code) of the outstanding principal
balance of
all Group II Mortgage Loans on the Distribution Date immediately
preceding such
anniversary and (y) twice the outstanding principal balance of the
Group II
Mortgage Loan which has the largest outstanding principal balance
on the
Distribution Date immediately preceding such anniversary.
GROUP II ALLOCABLE SHARE: With respect to any Class of Group II
Subordinate Certificates on any Distribution Date will generally
equal such
Class's pro rata share (based on the Current Principal Amount of
each Class
entitled thereto) of the sum of each of the components of the
definition of
Group II Subordinate Optimal Principal Amount; provided, that
except as
described in the succeeding sentence, no Class of Group II
Subordinate
Certificates (other than the Class of Group II Subordinate
Certificates
outstanding with the lowest numerical designation) shall be
entitled on any
Distribution Date to receive distributions pursuant to clauses (2),
(3) and (5)
of the definition of Group II Subordinate Optimal Principal Amount
unless the
Class Prepayment Distribution Trigger for the related Class is
satisfied for
such Distribution Date. If on any Distribution Date the Current
Principal Amount
of any Class of Group II Subordinate Certificates for which the
related Class
Prepayment Distribution Trigger was satisfied on such Distribution
Date is
reduced to zero, any amounts distributable to such Class pursuant
to clauses
(2), (3) and (5) of the definition of Group II Subordinate Optimal
Principal
Amount, to the extent of such Class's remaining Group II Allocable
Share, shall
be distributed to the remaining Classes of Group II Subordinate
Certificates in
reduction of their respective Current Principal Amounts,
sequentially, in the
order of their numerical Class designations.
GROUP II AVAILABLE FUNDS: For any Distribution Date and Loan Group
II,
an amount which generally includes, (1) all previously
undistributed payments on
account of principal (including the principal portion of Monthly
Payments,
Principal Prepayments and the principal amount of Net Liquidation
Proceeds) and
all previously undistributed payments on account of interest
received after the
Cut-Off Date and on or prior to the related Determination Date with
respect to
the Group II Mortgage Loans, (2) any Monthly Advances and
Compensating Interest
made by the Master Servicer or a Servicer for such Distribution
Date in respect
of the Group II Mortgage Loans and (3) any amounts reimbursed by
the Master
Servicer in connection with losses on certain eligible investments
in connection
with funds attributable to Loan Group II, net of such Loan Group
II's allocable
portion of fees payable to, and amounts reimbursable to, the
Servicers, the
Master Servicer, the Securities Administrator, the Trustee and the
Custodian as
provided in this Agreement and the Custodial Agreement and
investment earnings
on amounts on deposit in the Master Servicer Collection Account and
the
Distribution Account in connection with funds attributable to Loan
Group II.
GROUP II BANKRUPTCY COVERAGE TERMINATION DATE: The Distribution
Date
upon which the Group II Bankruptcy Loss Amount has been reduced to
zero or a
negative number (or the Group II Cross-Over Date, if earlier).
GROUP II BANKRUPTCY LOSS AMOUNT: On each Distribution Date,
$100,000,
subject to reduction as described in the Agreement, minus the
aggregate amount
of previous Bankruptcy Losses with respect to the Group II Mortgage
Loans.
GROUP II CERTIFICATES: The Group II Offered Certificates and Group
II
Non-Offered Certificates.
GROUP II CROSS-OVER DATE: The Distribution Date on which the
Current
Principal Amounts of the Group II Subordinate Certificates are
reduced to zero.
GROUP II FRAUD COVERAGE TERMINATION DATE: The Distribution Date
upon
which the Group II Fraud Loss Amount has been reduced to zero or a
negative
number (or the Group II Cross-Over Date, if earlier).
GROUP II FRAUD LOSS AMOUNT: Upon the initial issuance of the Group
II
Certificates and as of any Distribution Date prior to the second
anniversary of
the Cut-Off Date, 1% of the aggregate Scheduled Principal Balances
of the Group
II Mortgage Loans. As of any Distribution Date from the second and
through the
fifth anniversary of the Cut-off Date, (1) the lesser of (a) the
Group II Fraud
Loss Amount as of the most recent anniversary of the Cut-off Date
and (b) 0.5%
of the aggregate outstanding principal balance of all Group II
Mortgage Loans as
of the most recent anniversary of the Cut-off Date minus (2) the
Fraud Losses
that would have been allocated to the Group II Subordinate
Certificates in the
absence of the Group II Loss Allocation Limit since the most recent
anniversary
of the Cut-off Date. After the fifth anniversary of the Cut-off
Date, the Group
II Fraud Loss Amount shall be zero.
GROUP II LOSS ALLOCATION LIMIT: The meaning specified in
Subsection
6.03(b)(ii) hereof.
GROUP II MORTGAGE LOANS: The Mortgage Loans included as part of
Loan
Group II on the Mortgage Loan Schedule.
GROUP II NON-OFFERED CERTIFICATES: The Class II-B-4, Class II-B-5
and
Class II-B-6 Certificates.
GROUP II OFFERED CERTIFICATES: The Group II Senior Certificates,
Group
II Offered Subordinate Certificates and Class II-R-1
Certificates.
GROUP II OFFERED SUBORDINATE CERTIFICATES: The Class II-B-1,
Class
II-B-2 and Class II-B-3 Certificates.
GROUP II ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The aggregate
Current
Principal Amount of the Group II Subordinate Certificates as of the
Closing
Date.
GROUP II SENIOR CERTIFICATES: The Class II-A-1, Class II-A-2,
Class
II-A-3, Class II-A-4, Class II-PO and Class II-X Certificates.
GROUP II SENIOR OPTIMAL PRINCIPAL AMOUNT: With respect to the Group
II
Senior Certificates and each Distribution Date, an amount equal to
the sum of
the following (but in no event greater than the aggregate Current
Principal
Amounts of the Group II Senior Certificates immediately prior to
such
Distribution Date):
(1) the Group II Senior Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on
the
Group II Mortgage Loans on the related Due Date, as specified in
the
amortization schedule at the time applicable thereto (after
adjustment
for previous principal prepayments but before any adjustment to
such
amortization schedule by reason of any bankruptcy or similar
proceeding
or any moratorium or similar waiver or grace period);
(2) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of the Scheduled Principal Balance of each Group
II
Mortgage Loan which was the subject of a prepayment in full
received by
the Master Servicer during the applicable Prepayment Period;
(3) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of all partial prepayments allocated to
principal
received during the applicable Prepayment Period;
(4) the lesser of (a) the Group II Senior Prepayment
Percentage of the related Non-PO Percentage of the sum of (i) all
Net
Liquidation Proceeds allocable to principal received in respect of
each
Group II Mortgage Loan which became a Liquidated Mortgage Loan
during
the related Prepayment Period (other than Group II Mortgage
Loans
described in the immediately following clause (ii)) and all
Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan
during
the related Due Period and (ii) the Scheduled Principal Balance of
each
such Group II Mortgage Loan purchased by an insurer from the
Trustee
during the related Prepayment Period pursuant to the related
primary
mortgage insurance policy, if any, or otherwise; and (b) the Group
II
Senior Percentage of the related Non-PO Percentage of the sum of
(i)
the Scheduled Principal Balance of each Group II Mortgage Loan
which
became a Liquidated Mortgage Loan during the related Prepayment
Period
(other than the Group II Mortgage Loans described in the
immediately
following clause (ii)) and all Subsequent Recoveries received
in
respect of each Liquidated Mortgage Loan during the related Due
Period
and (ii) the Scheduled Principal Balance of each such Group II
Mortgage
Loan that was purchased by an insurer from the Trustee during
the
related Prepayment Period pursuant to the related primary
mortgage
insurance policy, if any or otherwise; and
(5) the Group II Senior Prepayment Percentage of the related
Non-PO Percentage of the sum of (a) the Scheduled Principal Balance
of
each Group II Mortgage Loan which was repurchased by the Seller
in
connection with such Distribution Date and (b) the excess, if any,
of
the Scheduled Principal Balance of each Group II Mortgage Loan that
has
been replaced by the Seller with a substitute Group II Mortgage
Loan
pursuant to the Mortgage Loan Purchase Agreement in connection
with
such Distribution Date over the Scheduled Principal Balance of
each
such substitute Group II Mortgage Loan.
GROUP II SENIOR PERCENTAGE: The lesser of (a) 100% and (b) the
percentage (carried to six places rounded up) obtained by dividing
the Current
Principal Amount of the Group II Senior Certificates, immediately
prior to such
Distribution Date, by the aggregate Scheduled Principal Balance of
the Group II
Mortgage Loans (other than the related PO Percentage thereof with
respect to the
related Discount Mortgage Loans) as of the beginning of the related
Due Period.
The initial Group II Senior Percentage will be approximately
96.19%.
GROUP II SENIOR PREPAYMENT PERCENTAGE: The Senior Prepayment
Percentage
for the Group II Certificates on each Distribution Date will be as
follows:
<TABLE>
<CAPTION>
PERIOD (DATES INCLUSIVE)
GROUP II SENIOR PREPAYMENT PERCENTAGE
------------------------
-------------------------------------
<S>
<C>
January 25, 2006 - December 25, 2010
100%
January 25, 2011 - December 25, 2011
Group II Senior
Percentage
plus 70% of the
Group
II Subordinate Percentage.
January 25, 2012 - December 25, 2012
Group II Senior
Percentage
plus 60% of the
Group
II Subordinate Percentage.
January 25, 2013 - December 25, 2013
Group II Senior
Percentage
plus 40% of the
Group
II Subordinate Percentage
January 25, 2014 - December 25, 2014
Group II Senior
Percentage
plus 20% of the
Group
II Subordinate Percentage.
January 25, 2015 and thereafter
Group II Senior Percentage.
</TABLE>
Any scheduled reduction to the Group II Senior Prepayment
Percentage
shall not be made as of any Distribution Date unless, as of the
last day of the
month preceding such Distribution Date, (1) the aggregate Scheduled
Principal
Balance of the Group II Mortgage Loans delinquent 60 days or more
(including for
this purpose any such Group II Mortgage Loans in foreclosure and
such Group II
Mortgage Loans with respect to which the related Mortgaged Property
has been
acquired by the trust) averaged over the last six months, as a
percentage of the
aggregate Current Principal Amount of the Group II Subordinate
Certificates does
not exceed 50% and (2) cumulative Realized Losses on the Group II
Mortgage Loans
do not exceed (a) 30% of the aggregate Current Principal Amount of
the Group II
Original Subordinate Principal Balance if such Distribution Date
occurs between
and including January 2011 and December 2011, (b) 35% of the Group
II Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2012 and December 2012, (c) 40% of the Group II
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2013 and December 2013, (d) 45% of the Group II
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2014 and December 2014, and (e) 50% of the Group
II Original
Subordinate Principal Balance if such Distribution Date occurs
during or after
January 2015.
Notwithstanding the foregoing, if on any Distribution Date, the
percentage the numerator of which is the aggregate Current
Principal Amount of
the Group II Senior Certificates immediately preceding such
Distribution Date,
and the denominator of which is the Scheduled Principal Balance of
the Group II
Mortgage Loans as of the beginning of the related Due Period,
exceeds such
percentage as of the Cut-off Date, then the Group II Senior
Prepayment
Percentage for such Distribution Date will equal 100%.
GROUP II SPECIAL HAZARD LOSS AMOUNT: Upon the initial issuance of
the
Group II Certificates, approximately $3,902,404. As of any
Distribution Date,
the Group II Special Hazard Loss Amount will equal the initial
Group II Special
Hazard Loss Amount, minus the sum of (i) the aggregate amount of
Special Hazard
Losses that would have been previously allocated to the Group II
Subordinate
Certificates in the absence of the Group II Loss Allocation Limit
and (ii) the
Group II Adjustment Amount.
GROUP II SPECIAL HAZARD TERMINATION DATE: The Distribution Date
upon
which the Group II Special Hazard Loss Amount has been reduced to
zero or a
negative number (or the Group II Cross-Over Date, if earlier).
GROUP II SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: With respect to
the
Group II Subordinate Certificates, the amount by which (x) the sum
of the
Current Principal Amounts of the Group II Certificates (after
giving effect to
the distribution of principal and the allocation of Realized Losses
in reduction
of the Current Principal Amounts of the Group II Certificates,
other than the
Class II-X Certificates, on such Distribution Date) exceeds (y) the
Scheduled
Principal Balances of the Group II Mortgage Loans on the Due Date
related to
such Distribution Date.
GROUP II SUBORDINATE CERTIFICATES: The Group II Offered
Subordinate
Certificates and Group II Non-Offered Certificates.
GROUP II SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: With respect to
the
Group II Subordinate Certificates and each Distribution Date will
be an amount
equal to the sum of the following (but in no event greater than the
aggregate
Current Principal Amount of the Group II Subordinate Certificates
immediately
prior to such Distribution Date):
(i) the Group II Subordinate Percentage of the related Non-PO
Percentage of the principal portion of all Monthly Payments due on
each Group II
Mortgage Loan on the related Due Date, as specified in the
amortization schedule
at the time applicable thereto (after adjustment for previous
principal
prepayments but before any adjustment to such amortization schedule
by reason of
any bankruptcy or similar proceeding or any moratorium or similar
waiver or
grace period);
(ii) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of the Scheduled Principal Balance of
each Group II
Mortgage Loan which was the subject of a prepayment in full
received by the
Master Servicer during the applicable Prepayment Period;
(iii) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of all partial prepayments of principal
received
during the applicable Prepayment Period for each Group II Mortgage
Loan;
(iv) the excess, if any, of (a) the Net Liquidation Proceeds
allocable to principal received during the related Prepayment
Period in respect
of each Liquidated Mortgage Loan in Loan Group II over (b) the sum
of the
amounts distributable to the holders of the Group II Senior
Certificates
pursuant to clause (4) of the definition of "Group II Senior
Optimal Principal
Amount" on such Distribution Date;
(v) the Group II Subordinate Prepayment Percentage of the
related Non-PO Percentage of (a) the Scheduled Principal Balance of
each Group
II Mortgage Loan which was repurchased by the Seller in connection
with such
Distribution Date and (b) the difference, if any, between the
Scheduled
Principal Balance of a Group II Mortgage Loan that has been
replaced by the
Seller with a substitute Group II Mortgage Loan pursuant to the
Mortgage Loan
Purchase Agreement in connection with such Distribution Date and
the Scheduled
Principal Balance of such substitute Mortgage Loan; and
(vi) on the Distribution Date on which the aggregate Current
Principal Amount of the Group II Senior Certificates have all been
reduced to
zero, 100% of any Group II Senior Optimal Principal Amount.
GROUP II SUBORDINATE PERCENTAGE: As of any Distribution Date and
with
respect to Group II Certificates, 100% minus the Group II Senior
Percentage for
the Group II Senior Certificates. The initial Group II Subordinate
Percentage
will be equal to approximately 3.81%.
GROUP II SUBORDINATE PREPAYMENT PERCENTAGE: As of any Distribution
Date
and with respect to Group II Certificates, 100% minus the Group II
Senior
Prepayment Percentage, except that on any Distribution Date after
the Current
Principal Amount of each Class of Group II Senior Certificates have
each been
reduced to zero, the Group II Subordinate Prepayment Percentage for
the Group II
Subordinate Certificates will equal 100%.
HOLDER: The Person in whose name a Certificate is registered in
the
related Certificate Register, except that, subject to Subsections
11.02(b) and
11.05(e), solely for the purpose of giving any consent pursuant to
this
Agreement, any Certificate registered in the name of the Depositor,
the Master
Servicer or the Trustee or any Affiliate thereof shall be deemed
not to be
outstanding and the Fractional Undivided Interest evidenced thereby
shall not be
taken into account in determining whether the requisite percentage
of Fractional
Undivided Interests necessary to effect any such consent has been
obtained.
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, the
Custodian
and the Securities Administrator and their officers, directors,
agents and
employees and, with respect to the Trustee, any separate co-trustee
and its
officers, directors, agents and employees.
INDEPENDENT: When used with respect to any specified Person, this
term
means that such Person (a) is in fact independent of the Depositor
or the Master
Servicer and of any Affiliate of the Depositor or the Master
Servicer, (b) does
not have any direct financial interest or any material indirect
financial
interest in the Depositor or the Master Servicer or any Affiliate
of the
Depositor or the Master Servicer and (c) is not connected with the
Depositor or
the Master Servicer or any Affiliate as an officer, employee,
promoter,
underwriter, trustee, partner, director or person performing
similar functions.
INDIVIDUAL CERTIFICATE: Any Non-Offered Certificate registered in
the
name of the Holder other than the Depository or its nominee.
INITIAL CERTIFICATION: The certification substantially in the form
of
Exhibit One to the Custodial Agreement.
INSTITUTIONAL ACCREDITED INVESTOR: Any Person meeting the
requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the
Securities Act or
any entity all of the equity holders in which come within such
paragraphs.
INSURANCE POLICY: With respect to any Mortgage Loan, any
standard
hazard insurance policy, flood insurance policy or title insurance
policy.
INSURANCE PROCEEDS: Amounts paid by the insurer under any
Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than
amounts
required to be paid over to the Mortgagor pursuant to law or the
related
Mortgage Note or Security Instrument and other than amounts used to
repair or
restore the Mortgaged Property or to reimburse insured
expenses.
INTEREST ACCRUAL PERIOD: For each Class of Certificates and for
any
Distribution Date, the calendar month preceding the month in which
such
Distribution Date occurs.
INTEREST ONLY CERTIFICATES: The Class I-X, Class I-XB and Class
II-X
Certificates.
INTEREST SHORTFALL: With respect to any Distribution Date and
each
Mortgage Loan that during the related Prepayment Period was the
subject of a
Principal Prepayment or constitutes a Relief Act Mortgage Loan, an
amount
determined as follows:
(A) Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one month's interest
at the
applicable Net Mortgage Rate on the amount of such prepayment and
(ii) the
amount of interest for the calendar month of such prepayment
(adjusted to the
applicable Net Mortgage Rate) received at the time of such
prepayment;
(B) Principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one month's interest
at the
applicable Net Mortgage Rate on the Scheduled Principal Balance of
such Mortgage
Loan immediately prior to such prepayment and (ii) the amount of
interest for
the calendar month of such prepayment (adjusted to the applicable
Net Mortgage
Rate) received at the time of such prepayment; and
(C) As to any Relief Act Mortgage Loan, the excess of (i) 30
days'
interest (or, in the case of a principal prepayment in full,
interest to the
date of prepayment) on the Scheduled Principal Balance thereof (or,
in the case
of a principal prepayment in part, on the amount so prepaid) at the
related Net
Mortgage Rate over (ii) 30 days' interest (or, in the case of a
principal
prepayment in full, interest to the date of prepayment) on such
Scheduled
Principal Balance (or, in the case of a Principal Prepayment in
part, on the
amount so prepaid) at the Net Mortgage Rate required to be paid by
the Mortgagor
as limited by application of the Relief Act.
INTERIM CERTIFICATION: The certification substantially in the form
of
Exhibit Two to the Custodial Agreement.
INVESTMENT LETTER: The letter to be furnished by each
Institutional
Accredited Investor which purchases any of the Class I-B-4, Class
I-B-5 or Class
I-B-6 Certificates in connection with such purchase, substantially
in the form
set forth as Exhibit F-1 hereto.
ISSUER: Prime Mortgage Trust 2005-5.
JPMORGAN CHASE: JPMorgan Chase Bank, or its successor in
interest.
JPMORGAN CHASE SERVICING AGREEMENT: The Servicing Agreement, dated
as
of November 1, 2004 between the Seller and JPMorgan Chase, attached
hereto as
Exhibit H-6, and as modified by the related Assignment
Agreement.
LAST SCHEDULED DISTRIBUTION DATE: With respect to the Group I
Certificates, June 25, 2034, and, with respect to the Group II
Certificates,
November 25, 2035.
LENDER-PAID PMI RATE: With respect to each Mortgage Loan covered by
a
lender-paid primary mortgage insurance policy, the amount payable
to the related
insurer, as stated in the Mortgage Loan Schedule.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which
the
related Servicer or the Master Servicer has determined that all
amounts it
expects to recover from or on account of such Mortgage Loan have
been recovered.
LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan,
the
date on which the Master Servicer or the related Servicer has
certified that
such Mortgage Loan has become a Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in
liquidation,
unreimbursed expenses paid or incurred by or for the account of the
Master
Servicer or the related Servicer in connection with the liquidation
of such
Mortgage Loan and the related Mortgage Property, such expenses
including (a)
property protection expenses, (b) property sales expenses, (c)
foreclosure and
sale costs, including court costs and reasonable attorneys' fees,
and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
LIQUIDATION PROCEEDS: Cash received in connection with the
liquidation
of a defaulted Mortgage Loan, whether through trustee's sale,
foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise and any
Subsequent
Recoveries.
LOAN GROUP: Any of
Loan Group I or Loan Group II.
LOAN GROUP I: The Mortgage Loans identified as part of Loan Group I
on
the Mortgage Loan Schedule.
LOAN GROUP II: The Mortgage Loans identified as part of Loan Group
II
on the Mortgage Loan Schedule.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, the
fraction,
expressed as a percentage, the numerator of which is the original
principal
balance of the related Mortgage Loan and the denominator of which
is the
Original Value of the related Mortgaged Property.
LOCKOUT CERTIFICATES: Any of the Class II-A-3 Certificates or
Class
II-A-4 Certificates.
LOCKOUT PRIORITY AMOUNT: For any Distribution Date the product of
(i)
the Shift Percentage and (ii) (x) the aggregate of the collections
described in
the definition of Group II Senior Optimal Principal Amount for such
Distribution
Date (without application of the Group II Senior Percentage)
multiplied by (y) a
fraction, the numerator of which is the aggregate Current Principal
Amount of
the Class II-A-3 Certificates and Class II-A-4 Certificates
immediately prior to
that Distribution Date and the denominator of which is the sum of
the related
Non-PO Percentages of the Scheduled Principal Balances of the Group
II Mortgage
Loans as of the first day of the related Due Period.
LOSS ALLOCATION LIMIT: Group I Loss Allocation Limit or Group II
Loss
Allocation Limit.
LOSS SEVERITY PERCENTAGE: With respect to any Distribution Date,
the
percentage equivalent of a fraction, the numerator of which is the
amount of
Realized Losses incurred on a Mortgage Loan and the denominator of
which is the
Scheduled Principal Balance of such Mortgage Loan immediately prior
to the
liquidation of such Mortgage Loan.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
MASTER SERVICER: As of the Closing Date, Wells Fargo Bank, N.A.
and,
thereafter, its respective successors in interest who meet the
qualifications of
the Servicing Agreements and this Agreement.
MASTER SERVICER CERTIFICATION: A written certification covering
servicing of the Mortgage Loans by the Servicers and signed by an
officer of the
Master Servicer that complies with (i) the Sarbanes-Oxley Act of
2002, as
amended from time to time, and (ii) the February 21, 2003 Statement
by the Staff
of the Division of Corporation Finance of the Securities and
Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act
Rules 13a-14 and
15d-14, as in effect from time to time; provided that if, after the
Closing Date
(a) the Sarbanes-Oxley Act of 2002 is amended, (b) the Statement
referred to in
clause (ii) is modified or superceded by any subsequent statement,
rule or
regulation of the Securities and Exchange Commission or any
statement of a
division thereof, or (c) any future releases, rules and regulations
are
published by the Securities and Exchange Commission from time to
time pursuant
to the Sarbanes-Oxley Act of 2002, which in any such case affects
the form or
substance of the required certification and results in the
required
certification being, in the reasonable judgment of the Master
Servicer,
materially more onerous than the form of the required certification
as of the
Closing Date, the Master Servicer Certification shall be as agreed
to by the
Master Servicer and the Depositor following a negotiation in good
faith to
determine how to comply with any such new requirements.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or
accounts
created and maintained pursuant to Section 4.02, which shall be
denominated
"U.S. Bank National Association, as Trustee f/b/o holders of
Structured Asset
Mortgage Investments II Inc., Prime Mortgage Trust, Certificates,
Series 2005-5
- Master Servicer Collection Account." The Master Servicer
Collection Account
shall be an Eligible Account.
MASTER SERVICING COMPENSATION: The meaning specified in Section
3.14.
MASTER SERVICING FEE: As to each Mortgage Loan and any
Distribution
Date, an amount payable out of each full payment of interest
received on such
Mortgage Loan and equal to the sum of (i) one-twelfth of the Master
Servicing
Fee Rate multiplied by the Scheduled Principal Balance of such
Mortgage Loan as
of the first day of the related Due Period, subject to reduction as
provided in
Section 3.14.
MASTER SERVICING FEE RATE: With respect to each Mortgage Loan,
0.0325%
per annum.
MATERIAL DEFECT: The meaning specified in Section 2.02(a).
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation
organized and existing under the laws of the State of Delaware, or
any successor
thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered
with MERS on the MERS(R) System.
MOM LOAN: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the
originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof, or as
nominee for any subsequent assignee of the originator pursuant to
an assignment
of mortgage to MERS.
MONTHLY ADVANCE: An advance of principal or interest required to
be
made by the applicable Servicer pursuant to the related Servicing
Agreement or
the Master Servicer pursuant to Section 6.06.
MOODY'S: Moody's Investors Service, Inc. or its successor in
interest.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues
from
time to time on any Mortgage Loan pursuant to the related Mortgage
Note, which
rate is initially equal to the "Mortgage Interest Rate" set forth
with respect
thereto on the Mortgage Loan Schedule.
MORTGAGE LOAN: A mortgage loan transferred and assigned to the
Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the
Trust Fund,
as identified in the Mortgage Loan Schedule (which shall include,
without
limitation, (i) with respect to each Cooperative Loan, the related
Mortgage
Note, Security Agreement, Assignment of Proprietary Lease,
Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights
appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a
Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and
all rights
appertaining thereto), including a mortgage loan the property
securing which has
become an REO Property. Notwithstanding any provision in this
Agreement to the
contrary, in no event shall the term "Mortgage Loan" include any
Underlying
Mortgage Loan.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement
dated as of December 29, 2005, between EMC Mortgage Corporation, as
seller, and
Structured Asset Mortgage Investments II Inc., as purchaser, and
all amendments
thereof and supplements thereto, attached as Exhibit J.
MORTGAGE LOAN SCHEDULE: The schedule, attached hereto as Exhibit B
with
respect to the Mortgage Loans and as amended from time to time to
reflect the
repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of
the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGED PROPERTY: Land and improvements securing the indebtedness
of
a Mortgagor under the related Mortgage Loan or, in the case of REO
Property,
such REO Property, or, in the case of a Cooperative Loan, the
related
Cooperative Lease and Cooperative Stock. In no event, however,
shall the term
"Mortgaged Property" include any mortgaged property or real estate
owned
property relating to an Underlying Mortgage Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NATIONAL CITY: National City Mortgage Co., or its successor in
interest.
NATIONAL CITY SERVICING AGREEMENT: The Purchase, Warranties and
Servicing Agreement, dated as of October 1, 2001, between the
Seller and
National City, attached hereto as Exhibit H-7, and as modified by
the related
Assignment Agreement.
NAVY FEDERAL: Navy
Federal Credit Union, or its successor in interest.
NAVY FEDERAL SERVICING AGREEMENT: The Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2002, between the Seller
and U.S.
Central Credit Union, attached hereto as Exhibit H-8, and as
modified by the
related Assignment Agreement.
NET INTEREST SHORTFALL: With respect to any Distribution Date,
the
Interest Shortfall, if any, for such Distribution Date net of
Compensating
Interest Payments made with respect to such Distribution Date.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are
payable therefrom
to the related Servicer or the Master Servicer in accordance with
the related
Servicing Agreement or this Agreement and (ii) unreimbursed
advances by the
related Servicer or the Master Servicer and Monthly Advances.
NET MORTGAGE RATE: With respect to each Mortgage Loan, the
Mortgage
Interest Rate in effect from time to time less the Servicing Fee
(expressed as a
per annum rate).
NON-OFFERED CERTIFICATES: The Group I Non-Offered Certificates
and
Group II Non-Offered Certificates.
NON-PO PERCENTAGE: With respect to any Group I Mortgage Loan with a
Net
Mortgage Rate less than 7.00% per annum, a fraction, expressed as a
percentage,
(x) the numerator of which is equal to the related Net Mortgage
Rate, and (y)
the denominator of which is equal to 7.00% per annum. With respect
to any other
Group I Mortgage Loan, 100%.
With respect to any Group II Mortgage Loan with a Net Mortgage
Rate
less than 5.50% per annum, a fraction, expressed as a percentage,
(x) the
numerator of which is equal to the related Net Mortgage Rate, and
(y) the
denominator of which is equal to 5.50% per annum. With respect to
any other
Group II Mortgage Loan, 100%.
NONRECOVERABLE ADVANCE: With respect to any Mortgage Loan, any
advance
or Monthly Advance (i) which was previously made or is proposed to
be made by
the Master Servicer, the Trustee (as successor Master Servicer) or
the
applicable Servicer and (ii) which, in the good faith judgment of
the Master
Servicer, the Trustee or the applicable Servicer, will not or, in
the case of a
proposed advance or Monthly Advance, would not, be ultimately
recoverable by the
Master Servicer, the Trustee (as successor Master Servicer) or the
applicable
Servicer from Liquidation Proceeds, Insurance Proceeds or future
payments on the
Mortgage Loan for which such advance or Monthly Advance was made or
is proposed
to be made.
NOTIONAL AMOUNT: The Notional Amount of the Class I-X Certificates,
as
of any date of determination, is equal to the aggregate Scheduled
Principal
Balance of the Group I Mortgage Loans with Net Mortgage Rates
greater than 8.00%
per annum. For federal income tax purposes, however, the Notional
Amount of the
Class I-X Certificates is an amount equal to the Uncertificated
Notional Amount
of REMIC III Regular Interest I-X. The Notional Amount of the Class
I-XB
Certificates, as of any date of determination, is equal to the
aggregate Current
Principal Amount of the Class I-B-1, Class I-B-2 and Class I-B-3
Certificates.
For federal income tax purposes, however, the Notional Amount of
the Class I-XB
Certificates is the aggregate Uncertificated Principal Balance of
REMIC III
Regular Interest I-B-1, REMIC III Regular Interest I-B-2 and REMIC
III Regular
Interest I-B-3. The Notional Amount of the Class II-X Certificates,
as of any
date of determination, is equal to the aggregate Scheduled
Principal Balance of
the Group II Mortgage Loans with Net Mortgage Rates greater than
5.50% per
annum. For federal income tax purposes, however, the Notional
Amount of the
Class II-X Certificates is an amount equal to the Uncertificated
Notional Amount
of REMIC II Regular Interest II-X.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the President or a Vice
President or
Assistant Vice President or other authorized officer of the Master
Servicer or
the Depositor, as applicable, and delivered to the Trustee, as
required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee or the Master Servicer, as applicable,
and who, unless
required to be Independent (an "Opinion of Independent Counsel"),
may be
internal counsel for the Company, the Master Servicer or the
Depositor.
ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The Group I Original
Subordinate Principal Balance or Group II Original Subordinate
Principal
Balance.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the
sales
price of a Mortgaged Property at the time of origination of a
Mortgage Loan,
except in instances where either clauses (i) or (ii) is
unavailable, the other
may be used to determine the Original Value, or if both clauses (i)
and (ii) are
unavailable, Original Value may be determined from other sources
reasonably
acceptable to the Depositor.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a
Mortgage
Loan which, prior to such Due Date, was not the subject of a
Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and
was not
purchased or replaced.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination,
the
principal balance of a Mortgage Loan remaining to be paid by the
Mortgagor, or,
in the case of an REO Property, the principal balance of the
related Mortgage
Loan remaining to be paid by the Mortgagor at the time such
property was
acquired by the Trust Fund less any Net Liquidation Proceeds with
respect
thereto to the extent applied to principal.
PASS-THROUGH RATE: As to each Class of Certificates, the REMIC
I
Regular Interests, the REMIC II Regular Interests and the REMIC III
Regular
Interests, the rate of interest determined as provided with respect
thereto in
Section 5.01(c). Any monthly calculation of interest at a stated
rate shall be
based upon annual interest at such rate divided by twelve.
PAYING AGENT: The Securities Administrator or any successor
paying
agent appointed hereunder.
PERMITTED INVESTMENTS: Any one or more of the following obligations
or
securities held in the name of the Trustee for the benefit of the
related
Certificateholders:
(i) direct obligations of, and obligations the timely payment
of which are fully guaranteed by the United States of America or
any agency or
instrumentality of the United States of America the obligations of
which are
backed by the full faith and credit of the United States of
America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated
under the laws of the United States of America or any state thereof
(including
the Trustee, the Securities Administrator or the Master Servicer or
its
Affiliates acting in its commercial banking capacity) and subject
to supervision
and examination by federal and/or state banking authorities,
provided that the
commercial paper and/or the short-term debt rating and/or the
long-term
unsecured debt obligations of such depository institution or trust
company at
the time of such investment or contractual commitment providing for
such
investment have the Applicable Credit Rating or better from each
Rating Agency
and (b) any other demand or time deposit or certificate of deposit
that is fully
insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by
an agency or instrumentality of the United States of America, the
obligations of
which are backed by the full faith and credit of the United States
of America,
in either case entered into with a depository institution or trust
company
(acting as principal) described in clause (ii)(a) above where the
Trustee holds
the security therefor;
(iv) securities bearing interest or sold at a discount issued
by any corporation (including the Trustee, the Securities
Administrator or the
Master Servicer or its Affiliates) incorporated under the laws of
the United
States of America or any state thereof that have the Applicable
Credit Rating or
better from each Rating Agency at the time of such investment or
contractual
commitment providing for such investment; provided, however, that
securities
issued by any particular corporation will not be Permitted
Investments to the
extent that investments therein will cause the then outstanding
principal amount
of securities issued by such corporation and held as part of the
Trust to exceed
10% of the aggregate Outstanding Principal Balances of all the
Mortgage Loans
and Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a
specified date not more than one year after the date of issuance
thereof) having
the Applicable Credit Rating or better from each Rating Agency at
the time of
such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance
company or other corporation or entity;
(vi) any other demand, money market or time deposit,
obligation, security or investment as may be acceptable to each
Rating Agency as
evidenced in writing by each Rating Agency to the Trustee;
(vii) any money market fund (including any such fund managed
or advised by the Trustee, Securities Administrator or Master
Servicer or any
affiliate thereof) which at the date of acquisition of the interest
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 or such lower
rating as will
not result in the downgrading or withdrawal of the ratings then
assigned to the
Certificates by each Rating Agency; and
(viii) any money market or common trust fund having the
Applicable Credit Rating or better from each Rating Agency,
including any such
fund for which the Trustee, the Securities Administrator or Master
Servicer or
any affiliate of the Trustee, the Securities Administrator or
Master Servicer
acts as a manager or an advisor; provided, however, that no
instrument or
security shall be a Permitted Investment if such instrument or
security
evidences a right to receive only interest payments with respect to
the
obligations underlying such instrument or if such security provides
for payment
of both principal and interest with a yield to maturity in excess
of 120% of the
yield to maturity at par or if such instrument or security is
purchased at a
price greater than par.
PERMITTED TRANSFEREE: Any Person other than a Disqualified
Organization
or an "electing large partnership" (as defined by Section 775 of
the Code).
PERSON: Any individual, corporation, partnership, joint
venture,
association, limited liability company, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
PHH MORTGAGE: PHH
Mortgage Corporation, or its successor in interest.
PHH MORTGAGE SERVICING AGREEMENT: The Mortgage Loan Flow Purchase,
Sale
and Servicing Agreement, dated as of April 26, 2001, among the
Seller, PHH
Mortgage and Bishop's Gate Residential Mortgage Trust, attached
hereto as
Exhibit H-9, and as modified by the related Assignment
Agreement.
PHYSICAL CERTIFICATES: The Residual Certificates and the
Non-Offered
Certificates.
PO PERCENTAGE: With respect to any Discount Mortgage Loan in Loan
Group
I, a fraction expressed as a percentage, (x) the numerator of which
is equal to
7.00% minus the related Net Mortgage Rate, and (y) the denominator
of which is
equal to 7.00% per annum. With respect to any Discount Mortgage
Loan in Loan
Group II, a fraction expressed as a percentage, (x) the numerator
of which is
equal to 5.50% minus the related Net Mortgage Rate, and (y) the
denominator of
which is equal to 5.50% per annum.
PREPAYMENT CHARGE: With respect to any Mortgage Loan, the charges
or
premiums, if any, due in connection with a full or partial
prepayment of such
Mortgage Loan in accordance with the terms thereof.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution
Date,
the aggregate shortfall, if any, in collections of interest
(adjusted to the
related Net Mortgage Rates) on Mortgage Loans resulting from (a)
prepayments in
full received during the related Prepayment Period and (b) the
partial
prepayments received during the related Prepayment Period to the
extent applied
prior to the Due Date in the month of the Distribution Date.
PREPAYMENT PERIOD: With respect to any Distribution Date and
the
related Servicer, such period as is provided in the related
Servicing Agreement.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage
guaranty
insurance policy issued in connection with a Mortgage Loan which
provides
compensation to a Mortgage Note holder in the event of default by
the obligor
under such Mortgage Note or the related Security Instrument, if any
or any
replacement policy therefor through the related Interest Accrual
Period for such
Class relating to a Distribution Date.
PRINCIPAL PREPAYMENT: Any payment (whether partial or full) or
other
recovery of principal on a Mortgage Loan which is received in
advance of its
scheduled Due Date to the extent that it is not accompanied by an
amount as to
interest representing scheduled interest due on any date or dates
in any month
or months subsequent to the month of prepayment, including
Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation
Proceeds received at the time a Mortgage Loan becomes a Liquidated
Mortgage
Loan.
PRINCIPAL ONLY CERTIFICATES: The Class I-PO Certificates and
Class
II-PO Certificates.
PROTECTED ACCOUNT: An account established and maintained for
the
benefit of Holders of the Certificates by each Servicer with
respect to the
related Mortgage Loans and with respect to REO Property pursuant to
the
applicable Servicing Agreement.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
QUALIFIED INSURER: Any insurance company duly qualified as such
under
the laws of the state or states in which the related Mortgaged
Property or
Mortgaged Properties is or are located, duly authorized and
licensed in such
state or states to transact the type of insurance business in which
it is
engaged and approved as an insurer by the Master Servicer, so long
as the claims
paying ability of which is acceptable to the Rating Agencies for
pass-through
certificates having the same rating as the related Certificates
rated by the
Rating Agencies as of the Closing Date.
RATING AGENCIES: With respect to the Group I Certificates, S&P
and
Moody's and with respect to the Group II Certificates, S&P and
Fitch.
REALIZED LOSS: Any (i) Bankruptcy Loss or (ii) as to any
Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such
Liquidated Mortgage
Loan plus accrued and unpaid interest thereon at the Mortgage
Interest Rate
through the last day of the month of such liquidation, less (y) the
related Net
Liquidation Proceeds with respect to such Mortgage Loan and the
related Mortgage
Property. In addition, to the extent the Paying Agent receives
Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss
with respect to that Mortgage Loan will be reduced to the extent
such recoveries
are applied to reduce the Current Principal Amount of any Class of
Certificates
on any Distribution Date.
RECORD DATE: With respect to any Distribution Date and any Class
of
Certificates, the close of business on the last Business Day of the
month
immediately preceding the month of such Distribution Date.
REGULATION S: Regulation S promulgated under the Securities
Act.
REGULATION S GLOBAL CERTIFICATES: The Regulation S Temporary
Global
Certificates and the Regulation S Permanent Global
Certificates.
REGULATION S PERMANENT GLOBAL CERTIFICATES: As defined in Section
5.09
(b) hereof.
REGULATION S TEMPORARY GLOBAL CERTIFICATES: As defined in
Section
5.09(c) hereof.
RELIEF ACT: The Servicemembers Civil Relief Act, formerly known as
the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended, or
similar state
law.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the
Scheduled
Payment thereof has been reduced due to the application of the
Relief Act.
REMIC: A real estate mortgage investment conduit, as defined in
the
Code.
REMIC I: That group of assets contained in the Trust Fund
designated as
a REMIC consisting of (i) the Group I Mortgage Loans, (ii) the
portion of the
Master Servicer Collection Account relating to the Group I Mortgage
Loans, (iii)
any REO Property relating to the Group I Mortgage Loans, (iv) the
rights with
respect to the related Servicing Agreement relating to the Group I
Mortgage
Loans, (v) the rights with respect to any related Assignment
Agreement relating
to the Group I Mortgage Loans, (vi) the Class I-R Deposit and (vii)
any proceeds
of the foregoing.
REMIC I INTERESTS: The REMIC I Regular Interests and the Class
I-R-1
Certificates.
REMIC I REGULAR INTERESTS: REMIC I Regular Interests 1-Sub,
2-Sub,
3-Sub, PO, 1-ZZZ, 2-ZZZ, 3-ZZZ, X, I-R-2 and I-R-3.
REMIC I SUBORDINATED BALANCE RATIO: The ratio among the
Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending
with the
designation "Sub," equal to the ratio among, with respect to each
such REMIC I
Regular Interest, the excess of (x) the aggregate Scheduled
Principal Balance of
the Group I Mortgage Loans in the related Subgroup (other than the
related PO
Percentage of the Scheduled Principal Balance of any such Group I
Mortgage
Loans) over (y) the aggregate Current Principal Amount of the Group
I Senior
Certificates (other than the Class I-PO Certificates) in the
related Subgroup.
REMIC II: That group of assets contained in the Trust Fund
designated
as a REMIC consisting of (i) the Group II Mortgage Loans, (ii) the
portion of
the Master Servicer Collection Account relating to the Group II
Mortgage Loans,
(iii) any REO Property relating to the Mortgage Loans, (iv) the
rights with
respect to the related Servicing Agreement relating to the Group II
Mortgage
Loans, (v) the rights with respect to any related Assignment
Agreement relating
to the Group II Mortgage Loans, (vi) the Class II-R Deposit and
(vii) any
proceeds of the foregoing.
REMIC II INTERESTS: The REMIC II Regular Interests and the Class
II-R-1
Certificates.
REMIC II REGULAR INTERESTS: REMIC II Regular Interests II-A-1,
II-A-2,
II-A-3, II-A-4, II-PO, II-X, II-B-1, II-B-2, II-B-3, II-B-4, II-B-5
and II-B-6.
REMIC III: That group of assets contained in the Trust Fund
designated
as a REMIC consisting of the REMIC I Regular Interests.
REMIC III INTERESTS: The REMIC III Regular Interests and the
Class
I-R-2 Certificates.
REMIC III REGULAR INTERESTS: REMIC III Regular Interests I-A-1,
I-A-2,
I-A-3, I-PO, I-X, I-B-1, I-B-2, I-B-3, I-B-4, I-B-5, I-B-6 and
I-R-3.
REMIC IV: That group of assets contained in the Trust Fund
designated
as a REMIC consisting of the REMIC II Regular Interests and the
REMIC III
Regular Interests.
REMIC IV CERTIFICATES: Each Class of Certificates other than the
Class
I-R-1, Class I-R-2 and Class II-R-1 Certificates.
REMIC OPINION: An Opinion of Independent Counsel to the effect that
the
proposed action described therein would not, under the REMIC
Provisions, (i)
cause any REMIC to fail to qualify as a REMIC while any regular
interest in such
REMIC is outstanding, (ii) result in a tax on prohibited
transactions with
respect to any REMIC or (iii) constitute a taxable contribution to
any REMIC
after the Startup Day.
REMIC PROVISIONS: The provisions of the federal income tax law
relating
to REMICs, which appear at Sections 860A through 860G of the Code,
and related
provisions and regulations promulgated thereunder, as the foregoing
may be in
effect from time to time.
REO PROPERTY: A Mortgaged Property acquired in the name of the
Trustee,
for the benefit of Certificateholders, by foreclosure or
deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
REPURCHASE PRICE: With respect to any Mortgage Loan (or any
property
acquired with respect thereto) required to be repurchased by the
Seller pursuant
to the Mortgage Loan Purchase Agreement or Article II of this
Agreement, an
amount equal to the sum of (i)(a) 100% of the Outstanding Principal
Balance of
such Mortgage Loan as of the date of repurchase (or if the related
Mortgaged
Property was acquired with respect thereto, 100% of the Outstanding
Principal
Balance at the date of the acquisition), plus (b) accrued but
unpaid interest on
the Outstanding Principal Balance at the related Mortgage Interest
Rate, through
and including the last day of the month of repurchase, plus (c) any
unreimbursed
Monthly Advances and servicing advances payable to the Servicer of
the Mortgage
Loan or to the Master Servicer and (ii) any costs and damages (if
any) incurred
by the Trust in connection with any violation of such Mortgage Loan
of any
predatory lending laws.
REPURCHASE PROCEEDS: The Repurchase Price in connection with
any
repurchase of a Mortgage Loan by the Seller and any cash deposit in
connection
with the substitution of a Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached
hereto
as Exhibit D.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan,
any
insurance policy which is required to be maintained from time to
time under this
Agreement with respect to such Mortgage Loan.
RESIDUAL CERTIFICATES: Any of the Class I-R-1, Class I-R-2, Class
I-R-3
and Class II-R-1 Certificates.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust
Office
(or any successor thereto), including any Vice President, Assistant
Vice
President, Trust Officer, any Assistant Secretary, any trust
officer or any
other officer of the Trustee customarily performing functions
similar to those
performed by any of the above designated officers and having
direct
responsibility for the administration of this Agreement, and any
other officer
of the Trustee to whom a matter arising hereunder may be
referred.
RULE 144A CERTIFICATE: The certificate to be furnished by each
purchaser of a Non-Offered Certificate (which is also a Physical
Certificate)
which is a Qualified Institutional Buyer as defined under Rule 144A
promulgated
under the Securities Act, substantially in the form set forth as
Exhibit F-2
hereto.
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.,
and its successors in interest.
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month,
the
scheduled payment or payments of principal and interest due during
such month on
such Mortgage Loan which either is payable by a Mortgagor in such
month under
the related Mortgage Note or, in the case of REO Property, would
otherwise have
been payable under the related Mortgage Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled
Payment.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan on
any
Distribution Date, (i) the unpaid principal balance of such
Mortgage Loan as of
the close of business on the related Due Date (i.e., taking account
of the
principal payment to be made on such Due Date and irrespective of
any
delinquency in its payment), as specified in the amortization
schedule at the
time relating thereto (before any adjustment to such amortization
schedule by
reason of any bankruptcy or similar proceeding occurring after the
Cut-off Date
(other than a Deficient Valuation) or any moratorium or similar
waiver or grace
period) and less (ii) any Principal Prepayments (including the
principal portion
of Net Liquidation Proceeds) received during or prior to the
related Prepayment
Period; provided that the Scheduled Principal Balance of a
Liquidated Mortgage
Loan is zero.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: Wells Fargo Bank, N.A., or its successor
in
interest, or any successor securities administrator appointed as
herein
provided.
SECURITIES LEGEND: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT
BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM
THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (3)
IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D
UNDER THE ACT
OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO
(A) THE RECEIPT BY THE TRUSTEE AND THE CERTIFICATE REGISTRAR OF A
LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE
RECEIPT BY THE
TRUSTEE AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE
TRUSTEE AND THE CERTIFICATE REGISTRAR THAT SUCH REOFFER, RESALE,
PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS OR
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY
NOT BE
ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE
BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE
EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975
OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED [in the case of a
Residual Certificate
or a Class I-B-4, Class I-B-5, Class I-B-6, Class II-B-4, Class
II-B-5 and Class
II-B-6 Certificate] UNLESS THE OPINION OF COUNSEL REQUIRED BY
SECTION 5.07 OF
THE POOLING AND SERVICING AGREEMENT IS PROVIDED [in the case of the
Class I-B-4,
Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5 and Class
II-B-6
Certificate] UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE
PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT
AND
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY
PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS
PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED
TRANSACTION
EXEMPTION ("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60 OR PTE
96-23 AND (II)
WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART
OF THE
DEPOSITOR, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER, ANY
SERVICER OR
THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY
CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION OR
AN OPINION OF COUNSEL TO SUCH EFFECT BY OR ON BEHALF OF AN
INSTITUTIONAL
ACCREDITED INVESTOR."
SECURITY AGREEMENT: With respect to a Cooperative Loan, the
agreement
creating a security interest in favor of the originator in the
related
Cooperative Stock.
SECURITY INSTRUMENT: A written instrument creating a valid first
lien
on a Mortgaged Property securing a Mortgage Note, which may be any
applicable
form of mortgage, deed of trust, deed to secure debt or security
deed, including
any riders or addenda thereto.
SELLER: EMC Mortgage Corporation, as mortgage loan seller under
the
Mortgage Loan Purchase Agreement.
SENIOR CERTIFICATES: The Group I Senior Certificates and Group
II
Senior Certificates.
SERVICER: With respect to each Mortgage Loan, CitiMortgage, EMC,
Fifth
Third, GMAC, GreenPoint, JPMorgan Chase, National City, Navy
Federal, PHH
Mortgage, SunTrust, WAMU and Wells Fargo.
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan, the
date
set forth in the Servicing Agreement.
SERVICING AGREEMENTS: The CitiMortgage Servicing Agreement, EMC
Servicing Agreement, Fifth Third Servicing Agreement, GMAC
Servicing Agreement,
GreenPoint Servicing Agreement, JPMorgan Chase Servicing Agreement,
National
City Servicing Agreement, Navy Federal Servicing Agreement, PHH
Mortgage
Servicing Agreement, SunTrust Servicing Agreement, WAMU Servicing
Agreement and
Wells Fargo Servicing Agreement.
SERVICING FEE: As to any Mortgage Loan and Distribution Date, an
amount
equal to the product of (i) the Scheduled Principal Balance of such
Mortgage
Loan as of the Due Date in the preceding calendar month and (ii)
the applicable
Servicing Fee Rate.
SERVICING FEE RATE: As to any Mortgage Loan, a per annum rate as
set
forth in the Mortgage Loan Schedule.
SHIFT PERCENTAGE: On any Distribution Date occurring during the
periods
set forth below will be as follows:
PERIOD (DATES INCLUSIVE)
SHIFT PERCENTAGE
--------------------------------------------------------
----------------
January 25, 2006 - December 25, 2010....................
0%
January 25, 2011 - December 25, 2011....................
30%
January 25, 2012 - December 25, 2012....................
40%
January 25, 2013 - December 25, 2013....................
60%
January 25, 2014 - December 25, 2014....................
80%
January 25, 2015 and thereafter.........................
100%
SPECIAL HAZARD LOSS: With respect to any Mortgage Loan, a Realized
Loss
attributable to damage or a direct physical loss suffered by a
Mortgaged
Property (including any Realized Loss due to the presence or
suspected presence
of hazardous wastes or substances on a Mortgaged Property) other
than any such
damage or loss covered by a hazard policy or a flood insurance
policy required
to be maintained in respect of such Mortgaged Property under this
Agreement or
any loss due to normal wear and tear or certain other causes.
SPECIAL HAZARD LOSS AMOUNT: Group I Special Hazard Loss Amount or
Group
II Special Hazard Loss Amount.
SPECIAL HAZARD TERMINATION DATE: Group I Special Hazard
Termination
Date or Group II Special Hazard Termination Date.
STARTUP DAY: December 29, 2005.
SUBGROUP: Any of Subgroup I-1, Subgroup I-2 and Subgroup I-3.
SUBGROUP I-1: All of the Group I Mortgage Loans with a Net
Mortgage
Rate of less than or equal to 7.00% per annum plus the Subgroup I-1
Fraction of
the principal balance of any Group I Mortgage Loan with a Net
Mortgage Rate of
greater than 7.00% per annum and less than 7.50% per annum.
SUBGROUP I-1 CERTIFICATES: The Class I-A-1 Certificates and Class
I-PO
Certificates.
SUBGROUP I-1 FRACTION: With respect to any Group I Mortgage Loan
with a
Net Mortgage Rate of greater than 7.00% per annum and less than
7.50% per annum,
a fraction, (x) the numerator of which is equal to 7.50% per annum
minus the Net
Mortgage Rate of such Group I Mortgage Loan, and (y) the
denominator of which is
equal to 0.50%.
SUBGROUP I-2: All of the Group I Mortgage Loans with a Net
Mortgage
Rate of 7.50% per annum plus the Subgroup I-2A Fraction of the
principal balance
of any Group I Mortgage Loan with a Net Mortgage Rate of greater
than 7.00% per
annum and less than 7.50% per annum and the Subgroup I-2B Fraction
of the
principal balance of any Group I Mortgage Loan with a Net Mortgage
Rate greater
than 7.50% per annum and less than 8.00% per annum.
SUBGROUP I-2 CERTIFICATES: The Class I-A-2 Certificates.
SUBGROUP I-2A FRACTION: With respect to any Group I Mortgage Loan
with
a Net Mortgage Rate of greater than 7.00% per annum and less than
7.50% per
annum, a fraction, (x) the numerator of which is equal to Net
Mortgage Rate
minus 7.00% per annum of such Group I Mortgage Loan, and (y) the
denominator of
which is equal to 0.50%.
SUBGROUP I-2B FRACTION: With respect to any Group I Mortgage Loan
with
a Net Mortgage Rate of greater than 7.50% per annum and less than
8.00% per
annum, a fraction, (x) the numerator of which is equal to 8.00% per
annum minus
the Net Mortgage Rate of such Group I Mortgage Loan, and (y) the
denominator of
which is equal to 0.50%.
SUBGROUP I-3: All of the Group I Mortgage Loans with a Net
Mortgage
Rate of greater than or equal to 8.00% per annum, plus the Subgroup
I-3 Fraction
of the principal balance of any Group I Mortgage Loans with a Net
Mortgage Rate
greater than 7.50% per annum and less than 8.00% per annum.
SUBGROUP I-3 CERTIFICATES: The Class I-A-3 Certificates.
SUBGROUP I-3 FRACTION: With respect to any Group I Mortgage Loan
with a
Net Mortgage Rate of greater than 7.50% per annum and less than
8.00% per annum,
a fraction, (x) the numerator of which is equal to the Net Mortgage
Rate of such
Group I Mortgage Loans minus 7.50% per annum, and (y) the
denominator of which
is equal to 0.50%.
SUBGROUP PRINCIPAL DISTRIBUTION AMOUNT: With respect to each of
Subgroup I-1, Subgroup I-2 and Subgroup I-3 Certificates and each
Distribution
Date will be an amount equal to the sum of the following (but in no
event
greater than the aggregate Current Principal Amount of each of the
Subgroup I-1,
Subgroup I-2 and Subgroup I-3 Certificates, as applicable,
immediately prior to
such Distribution Date):
(1) the applicable Subgroup Senior Percentage of the related
Non-PO Percentage of the principal portion of all Scheduled
Payments
due on the Mortgage Loans in the related Subgroup on the related
Due
Date, as specified in the amortization schedule at the time
applicable
thereto
(after adjustment for previous Principal Prepayments but before
any adjustments to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar
waiver or
grace period);
(2) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of the Scheduled Principal Balance
of
each Mortgage Loan in the related Subgroup which was the subject of
a
Principal Prepayment in full received by the Master Servicer during
the
applicable Prepayment Period;
(3) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of all Principal Prepayments in
part
received
by the Master Servicer prepayments during the applicable
Prepayment Period with respect to each Mortgage Loan in the
related
Subgroup;
(4) the lesser of (a) the applicable Subgroup Senior
Prepayment Percentage of the related Non-PO Percentage of the sum
of
(i) all Net Liquidation Proceeds allocable to principal received
in
respect of each Mortgage Loan in the related Subgroup which became
a
Liquidated Mortgage Loan during the related Prepayment Period
(other
than Mortgage Loans described in the immediately following clause
(ii))
and all Subsequent Recoveries received in respect of each
Liquidated
Mortgage Loan in the related Subgroup during the related Due Period
and
(ii) the Scheduled Principal Balance of each such Mortgage Loan in
the
related Subgroup purchased by an insurer from the Trustee during
the
related Prepayment Period pursuant to the related Primary
Mortgage
Insurance Policy, if any, or otherwise; and (b) the applicable
Subgroup
Senior Percentage of the related Non-PO Percentage of the sum of
(i)
the Scheduled Principal Balance of each Mortgage Loan in the
related
Subgroup which became a Liquidated Mortgage Loan during the
related
Prepayment Period (other than the Mortgage Loans described in
the
immediately following clause (ii)) and all Subsequent
Recoveries
received in respect of each Liquidated Mortgage Loan in the
related
Subgroup during the related Due Period and (ii) the Scheduled
Principal
Balance of each such Mortgage Loan in the related Subgroup that
was
purchased by an insurer from the Trustee during the related
Prepayment
Period pursuant to the related Primary Mortgage Insurance Policy,
if
any or otherwise; and
(5) the applicable Subgroup Senior Prepayment Percentage of
the related Non-PO Percentage of the sum of (a) the Scheduled
Principal
Balance of each Mortgage Loan in the related Subgroup which was
repurchased by the Issuer in connection with such Distribution Date
and
(b) the excess, if any, of the Scheduled Principal Balance of
each
Mortgage Loan in the related Subgroup that has been replaced by
the
Issuer with a substitute Mortgage Loan pursuant to the Mortgage
Loan
Purchase Agreement in connection with such Distribution Date over
the
Scheduled Principal Balance of each such substitute Mortgage
Loan.
SUBGROUP SENIOR PERCENTAGE: With respect to each Subgroup, the
lesser
of (a) 100% and (b) the percentage (carried to six places rounded
up) obtained
by dividing the aggregate Current Principal Amount of the Senior
Certificates of
such Subgroup (other than any Class I-PO Certificates), immediately
prior to
such Distribution Date, by the aggregate Scheduled Principal
Balance of the
Mortgage Loans in the related Subgroup (other than the related PO
Percentage
thereof with respect to the related Discount Mortgage Loans) as of
the beginning
of the related Due Period. The initial Subgroup Senior Percentage
for the Group
I Senior Certificates will be approximately 93.42% per annum for
Subgroup I-1,
93.42% per annum for Subgroup I-2 and 93.43% per annum for Subgroup
I-3.
SUBGROUP SENIOR PREPAYMENT PERCENTAGE: The Subgroup Senior
Prepayment
Percentage for the Subgroup I-1, Subgroup I-2 and Subgroup I-3
Certificates, on
any Distribution Date occurring during the periods set forth below
will be as
follows:
PERIOD (DATES INCLUSIVE)
SUBGROUP SENIOR PREPAYMENT PERCENTAGE
------------------------
-------------------------------------
January 25, 2006 - December 25, 2010
100%
January 25, 2011 - December 25, 2011
Subgroup Senior Percentage for the
related Subgroup Certificates plus
70% of the related Subgroup
Subordinate Percentage.
January 25, 2012 - December 25, 2012
Subgroup Senior Percentage for the
related Subgroup Certificates plus
60% of the related Subgroup
Subordinate Percentage.
January 25, 2013 - December 25, 2013
Subgroup Senior Percentage for the
related Subgroup Certificates plus
40% of the related Subgroup
Subordinate Percentage.
January 25, 2014 - December 25, 2014
Subgroup Senior Percentage for the
related Subgroup Certificates plus
20% of the related Subgroup
Subordinate Percentage.
January 25, 2015 and thereafter
Subgroup Senior Percentage for the
related Subgroup Certificates.
Any scheduled reduction to the Subgroup Senior Prepayment
Percentage
for the Subgroup I-1, Subgroup I-2 and Subgroup I-3 Certificates
shall not be
made as of any Distribution Date unless, as of the last day of the
month
preceding such Distribution Date (1) the aggregate Scheduled
Principal Balance
of the Group I Mortgage Loans delinquent 60 days or more (including
for this
purpose any such Group I Mortgage Loans in foreclosure and such
Group I Mortgage
Loans with respect to which the related Mortgaged Property has been
acquired by
the Trust) averaged over the last six months, as a percentage of
the aggregate
Current Principal Amount of the Group I Subordinate Certificates
does not exceed
50% and (2) cumulative Realized Losses on the Group I Mortgage
Loans do not
exceed (a) 30% of the aggregate Current Principal Amount of the
Group I Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2011 and December 2011, (b) 35% of the Group I
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2012 and December 2012, (c) 40% of the Group I
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2013 and December 2013, (d) 45% of the Group I
Original
Subordinate Principal Balance if such Distribution Date occurs
between and
including January 2014 and December 2014, and (e) 50% of the Group
I Original
Subordinate Principal Balance if such Distribution Date occurs
during or after
January 2015.
Notwithstanding the foregoing, if on any Distribution Date, the
percentage for Subgroup I-1, Subgroup I-2 or Subgroup I-3, the
numerator of
which is the aggregate Current Principal Amount of the Senior
Certificates of
such Subgroup immediately preceding such Distribution Date, and the
denominator
of which is the Scheduled Principal Balance of the Mortgage Loans
in such
Subgroup (other than the related PO Percentage thereof with respect
to the
related Discount Mortgage Loans) as of the beginning of the related
Due Period,
exceeds such percentage as of the Cut-off Date, then the Subgroup
Senior
Prepayment Percentage with respect to the Group I Senior
Certificates of each
Subgroup for such Distribution Date will equal 100%.
SUBGROUP SUBORDINATE PERCENTAGE: As of any distribution date,
100%
minus the related Subgroup Senior Percentage. The initial Subgroup
Subordinate
Percentage for the Group I Senior Certificates will be
approximately 6.58% per
annum for Subgroup I-1, 6.58% per annum for Subgroup I-2 and 6.57%
per annum for
Subgroup I-3.
SUBORDINATE CERTIFICATES: The Group I Subordinate Certificates
and
Group II Subordinate Certificates.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: Group I Subordinate
Certificate Writedown Amount or Group II Subordinate Certificate
Writedown
Amount.
SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: Group I Subordinate
Optimal
Principal Amount or Group II Subordinate Optimal Principal
Amount.
SUBORDINATE PERCENTAGE: Group I Subordinate Percentage or Group
I
Subordinate Percentage.
SUBORDINATE PREPAYMENT PERCENTAGE: Group I Subordinate
Prepayment
Percentage or Group II Subordinate Prepayment Percentage.
SUBSEQUENT RECOVERIES: As of any Distribution Date, amounts
received by
the related Servicer during the related Due Period or surplus
amounts held by
the related Servicer to cover estimated expenses (including, but
not limited to,
recoveries in respect of the representations and warranties made by
the Seller
pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a
Liquidated Mortgage Loan or disposition of an REO Property prior to
the related
Prepayment Period that resulted in a Realized Loss, after the
liquidation or
disposition of such Mortgage Loan.
SUBSTITUTE MORTGAGE LOAN: A Mortgage Loan tendered to the
Trustee
pursuant to the Servicing Agreement, the Mortgage Loan Purchase
Agreement or
Section 2.04 of this Agreement, as applicable, in each case, (i)
which has an
Outstanding Principal Balance not greater nor materially less than
the Mortgage
Loan for which it is to be substituted; (ii) which has a Mortgage
Interest Rate
and Net Mortgage Rate not less than, and not materially greater
than, such
Mortgage Loan; (iii) which has a maturity date not materially
earlier or later
than such Mortgage Loan and not later than the latest maturity date
of any
Mortgage Loan; (iv) which is of the same property type and
occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater
than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in
payment of
principal and interest as of the date of substitution; and (vii) as
to which the
payment terms do not vary in any material respect from the payment
terms of the
Mortgage Loan for which it is to be substituted.
SUNTRUST: SunTrust
Mortgage, Inc., or its successor in interest.
SUNTRUST SERVICING AGREEMENT: The Purchase, Warranties and
Servicing
Agreement, dated as of January 1, 2002, between the Seller and
SunTrust,
attached hereto as Exhibit H-10, and as modified by the related
Assignment
Agreement.
TAX ADMINISTRATION AND TAX MATTERS PERSON: The Securities
Administrator
or any successor thereto or assignee thereof shall serve as tax
administrator
hereunder and as agent for the Tax Matters Person. The Holder of
each Class of
Residual Certificates shall be the Tax Matters Person for the
related REMIC, as
more particularly set forth in Section 9.12 hereof.
TERMINATION PURCHASE PRICE: The price, calculated as set forth
in
Section 10.01, to be paid in connection with the repurchase of the
Mortgage
Loans pursuant to Section 10.01.
TRUST FUND: The corpus of the trust created by this Agreement,
consisting of the Mortgage Loans and the other assets described in
Section
2.01(a).
TRUSTEE: U.S. Bank National Association or its successor in
interest,
or any successor trustee appointed as herein provided.
UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC I Regular
Interest X, the aggregate Scheduled Principal Balance of the Group
I Mortgage
Loans with Net Mortgage Rates greater than 8.00% per annum. With
respect to
REMIC II Regular Interest II-X, the aggregate Scheduled Principal
Balance of the
Group II Mortgage Loans with Net Mortgage Rates greater than 5.50%
per annum.
With respect to REMIC III Regular Interest I-X, an amount equal to
the
Uncertificated Notional Amount of REMIC I Regular Interest X.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to any REMIC I
Regular
Interest (other than REMIC I Regular Interest X), any REMIC II
Regular Interest
(other than REMIC II Regular Interest II-X) or any REMIC III
Regular Interest
(other than REMIC III Regular Interest I-X) as of any Distribution
Date, the
initial principal amount of such regular interest, reduced by (i)
all amounts
distributed on previous Distribution Dates on such regular interest
with respect
to principal and (ii) the principal portion of all Realized Losses
allocated
prior to such Distribution Date to such regular interest, taking
account of the
Group I Loss Allocation Limit or Group II Loss Allocation Limit, as
applicable.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or
related
REO Property such that the complete restoration of such Mortgaged
Property or
related REO Property is not fully reimbursable by the hazard
insurance policies
required to be maintained pursuant the Servicing Agreement, without
regard to
whether or not such policy is maintained.
UNITED STATES PERSON: A citizen or resident of the United States,
a
corporation or partnership (including an entity treated as a
corporation or
partnership for federal income tax purposes) created or organized
in, or under
the laws of, the United States or any state thereof or the District
of Columbia
(except, in the case of a partnership, to the extent provided in
Treasury
regulations), provided that, for purposes solely of the Residual
Certificates,
no partnership or other entity treated as a partnership for United
States
federal income tax purposes shall be treated as a United States
Person unless
all Persons that own an interest in such partnership either
directly or through
any entity that is not a corporation for United States federal
income tax
purposes are United States Persons, or an estate whose income is
subject to
United States federal income tax regardless of its source, or a
trust if a court
within the United States is able to exercise primary supervision
over the
administration of the trust and one or more such United States
Persons have the
authority to control all substantial decisions of the trust. To the
extent
prescribed in regulations by the Secretary of the Treasury, which
have not yet
been issued, a trust which was in existence on August 20, 1996
(other than a
trust treated as owned by the grantor under subpart E of part I of
subchapter J
of chapter 1 of the Code) and which was treated as a United States
Person on
August 20, 1996 may elect to continue to be treated as a United
States Person
notwithstanding the previous sentence.
WAMU: Washington
Mutual Bank, or its successor in interest.
WAMU SERVICING AGREEMENT: The Servicing Agreement, dated as of
April 1,
2005, between the Seller and Washington Mutual, attached hereto as
Exhibit H-11,
and as modified by the related Assignment Agreement.
WELLS FARGO: Wells
Fargo Bank, N.A., or its successor in interest.
WELLS FARGO SERVICING AGREEMENT: The Amended and Restated
Master
Seller's Warranties and Servicing Agreement, dated as of November
1, 2005,
between the Seller and Wells Fargo, attached hereto as Exhibit
H-12, and as
modified by the related Assignment Agreement.
<PAGE>
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01 CONVEYANCE OF MORTGAGE LOANS TO TRUSTEE.
(a) The Depositor concurrently with the execution and delivery of
this
Agreement, sells, transfers and assigns to each Trust without
recourse all its
right, title and interest in and to (i) the Mortgage Loans
identified in the
Mortgage Loan Schedule, including all interest and principal due
with respect to
the Mortgage Loans after the Cut-off Date, but excluding any
payments of
principal and interest due on or prior to the Cut-off Date; (ii)
such assets as
shall from time to time be credited or are required by the terms of
this
Agreement to be credited to the Master Servicer Collection Account,
(iii) such
assets relating to the Mortgage Loans as from time to time may be
held by the
Servicers in the Protected Accounts, the Master Servicer in the
Master Servicer
Collection Account and the Paying Agent in the Distribution
Account, (iv) any
REO Property, (v) the Required Insurance Policies and any amounts
paid or
payable by the insurer under any Insurance Policy (to the extent
the mortgagee
has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to
the extent
provided in Subsection 2.03(a), (vii) the rights with respect to
the Servicing
Agreements as assigned to the Trustee on behalf of the related
Certificateholders by the Assignment Agreements and (viii) all
proceeds of the
foregoing. Although it is the intent of the parties to this
Agreement that the
conveyance of the Depositor's right, title and interest in and to
the Mortgage
Loans and other assets in the Trust Funds pursuant to this
Agreement shall
constitute a purchase and sale and not a loan, in the event that
such conveyance
is deemed to be a loan, it is the intent of the parties to this
Agreement that
the Depositor shall be deemed to have granted to the Trustee a
first priority
perfected security interest in all of the Depositor's right, title
and interest
in, to and under the Mortgage Loans and other assets in the Trust
Fund, and that
this Agreement shall constitute a security agreement under
applicable law.
Moreover, if for any other reason this Agreement is held or deemed
to create a
security interest in the Mortgage Loans and the other assets
constituting the
Trust Funds, then it is intended as follows: (a) this Agreement
shall also be
deemed to be a security agreement within the meaning of Articles 8
and 9 of the
Uniform Commercial Code; (b) the conveyance provided for in this
Section shall
be deemed to be a grant by the Depositor to the Trustee of a
security interest
in all of the Depositor's right, title and interest in and to the
Mortgage Loans
and all proceeds of the conversion, voluntary or involuntary, of
the foregoing
into cash, instruments, securities or other property, including
without
limitation all amounts from time to time held or invested in the
Distribution
Account, whether in the form of cash, instruments, securities or
other property;
(c) the possession by the Trustee or its agent of the Mortgage
Loans and such
other items of property as constitute instruments, money,
negotiable documents
or chattel paper shall be deemed to be "possession by the secured
party" for
purposes of perfecting the security interest pursuant to Section
9-305 of the
Uniform Commercial Code; (d) the Securities Administrator shall be
deemed to be
the "securities intermediary," as such term is defined in
Section
8-102(a)(14)(ii) of the New York Uniform Commercial Code, that in
the ordinary
course of its business maintains "securities accounts" for others,
as such term
is used in Section 8-501 of the New York Uniform Commercial Code;
(e) the
"securities intermediary's jurisdiction" as defined in the New York
Uniform
Commercial Code shall be the State of New York; (f) the Securities
Administrator
is not a "clearing corporation", as such term is defined in Section
8-102(a)(5)
of the New York Uniform Commercial Code and (g) notifications to
persons holding
such property, and acknowledgments, receipts or confirmations from
persons
holding such property, shall be deemed to be notifications to
or
acknowledgments, receipts or confirmations from, financial
intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting
such security interest under applicable law. The Depositor, the
Seller and the
Trustee agree that it is not intended that any Mortgage Loan be
conveyed to the
Trust that is either (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
(iii) a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory
Home Loan Practices Act effective November 7, 2004 or (iv) a
"High-Cost Home
Loan" as defined by the Indiana High Cost Home Loan Law effective
Jan 1, 2005.
(b) In connection with the above transfer and assignment, the
Depositor
hereby delivers to the Custodian, as agent for the Trustee, with
respect to each
Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed without recourse (a)
to the order of the Trustee or (b) in the case of a Mortgage Loan
registered on
the MERS system, endorsed in blank, in either case showing an
unbroken chain of
endorsements from the originator thereof to the Person endorsing it
to the
Trustee, or lost note affidavit together with a copy of the related
Mortgage
Note;
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language
indicating that such
Mortgage Loan is a MOM Loan, which shall have been recorded (or if
the original
is not available, a copy), with evidence of such recording
indicated thereon (or
if clause (w) in the proviso below applies, shall be in recordable
form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy
of the assignment (which may be in the form of a blanket assignment
if permitted
in the jurisdiction in which the Mortgaged Property is located) to
"U.S. Bank
National Association, as Trustee", with evidence of recording with
respect to
each Mortgage Loan in the name of the Trustee thereon (or if clause
(w) in the
proviso below applies or for Mortgage Loans with respect to which
the related
Mortgaged Property is located in a state other than Maryland or an
Opinion of
Counsel has been provided as set forth in this Section 2.01(b),
shall be in
recordable form);
(iv) all intervening assignments of the Security Instrument,
if applicable and only to the extent available to the Depositor
with evidence of
recording thereon;
(v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if
any;
(vi) the original policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for title
insurance; and
(vii) originals of all modification agreements, if applicable
and available.
and (II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of
endorsements from the
originator thereof to the Person endorsing it to the Trustee, or
lost note
affidavit, together with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment
of Proprietary Lease to the originator of the Cooperative Loan with
intervening
assignments showing an unbroken chain of title from such originator
to the
Trustee;
(iii) The related Cooperative Stock Certificate, representing
the related Cooperative Stock pledged with respect to such
Cooperative Loan,
together with an undated stock power (or other similar instrument)
executed in
blank;
(iv) The original recognition agreement by the Cooperative of
the interests of the mortgagee with respect to the related
Cooperative Loan and
any transfer documents related to the recognition agreement;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such
Cooperative Loan as
secured party, each with evidence of recording thereof, evidencing
the interest
of the originator under the Security Agreement and the Assignment
of Proprietary
Lease;
(vii) Copies of the filed UCC-3 assignments of the security
interest referenced in clause (vi) above showing an unbroken chain
of title from
the originator to the Trustee, each with evidence of recording
thereof,
evidencing the interest of the originator under the Security
Agreement and the
Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the
originator in the Security Agreement and Assignment of Proprietary
Lease,
showing an unbroken chain of title from the originator to the
Trustee; and
(ix) The original of each modification, assumption agreement
or preferred loan agreement, if any, relating to such Cooperative
Loan;
PROVIDED, HOWEVER, that in lieu of the foregoing, the Depositor may
deliver to
the Custodian, as agent of the Trustee, the following documents,
under the
circumstances set forth below: (w) in lieu of the original Security
Instrument,
assignments to the Trustee or intervening assignments thereof which
have been
delivered, are being delivered or will, upon receipt of recording
information
relating to the Security Instrument required to be included
thereon, be
delivered to recording offices for recording and have not been
returned to the
Depositor in time to permit their delivery as specified above, the
Depositor may
deliver a true copy thereof with a certification by the Depositor,
on the face
of such copy, substantially as follows: "Certified to be a true and
correct copy
of the original, which has been transmitted for recording"; (x) in
lieu of the
Security Instrument, assignment to the Trustee or intervening
assignments
thereof, if the applicable jurisdiction retains the originals of
such documents
(as evidenced by a certification from the Depositor to such effect)
the
Depositor may deliver photocopies of such documents containing an
original
certification by the judicial or other governmental authority of
the
jurisdiction where such documents were recorded; (y) in lieu of the
Mortgage
Notes relating to the Mortgage Loans identified on Exhibit 5 to the
Mortgage
Loan Purchase Agreement, the Depositor may deliver lost note
affidavits from the
Seller; and (z) the Depositor shall not be required to deliver
intervening
assignments or Mortgage Note endorsements between the related
underlying
originator or underlying Seller and the Seller, between the Seller
and the
Depositor, and between the Depositor and the Trustee; and provided,
further,
however, that in the case of Mortgage Loans which have been prepaid
in full
after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of
delivering the above documents, may deliver to the Trustee or the
Custodian, as
its agent, a certification to such effect and shall deposit all
amounts paid in
respect of such Mortgage Loans in the Master Servicer Collection
Account on the
Closing Date. The Depositor shall deliver such original documents
(including any
original documents as to which certified copies had previously been
delivered)
to the Trustee or the Custodian, as its agent, promptly after they
are received.
The Depositor shall cause the Seller, at its expense, to cause each
assignment
of the Security Instrument to the Trustee to be recorded not later
than 180 days
after the Closing Date, unless (a) such recordation is not required
by the
Rating Agencies or an Opinion of Counsel addressed to the Trustee
has been
provided to the Trustee (with a copy to the Custodian) which states
that
recordation of such Security Instrument is not required to protect
the interests
of the related Certificateholders in the related Mortgage Loans or
(b) MERS is
identified on the Mortgage or on a properly recorded assignment of
the Mortgage
as the mortgagee of record solely as nominee for the Seller and its
successor
and assigns; provided, however, notwithstanding the foregoing, each
assignment
shall be submitted for recording by the Seller in the manner
described above, at
no expense to the Trust or the Trustee or the Custodian, as its
agent, upon the
earliest to occur of: (i) reasonable direction by the Holders of
Certificates
evidencing Fractional Undivided Interests aggregating not less than
25% of the
Trust Fund, (ii) the occurrence of an Event of Default, (iii) the
occurrence of
a bankruptcy, insolvency or foreclosure relating to the Seller and
(iv) the
occurrence of a servicing transfer as described in Section 8.02
hereof.
Notwithstanding the foregoing, if the Seller fails to pay the cost
of recording
the assignments, such expense will be paid by the Trustee and the
Trustee shall
be reimbursed for such expenses by the Trust in accordance with
Section 9.05.
Section 2.02 ACCEPTANCE OF MORTGAGE LOANS AND UNDERLYING
CERTIFICATES
BY TRUSTEE.
(a) The Trustee acknowledges the sale, transfer and assignment of
the
Trust Funds to it by the Depositor and receipt of, subject to
further review and
the exceptions which may be noted pursuant to the procedures
described below,
and declares that it holds, the documents (or certified copies
thereof)
delivered to the Custodian, as its agent, pursuant to Section
2.01(b), and
declares that it will continue to hold those documents and any
amendments,
replacements or supplements thereto and all other assets of the
Trust Funds
delivered to it as Trustee in trust for the use and benefit of all
present and
future Holders of the related Certificates. On the Closing Date,
the Custodian,
with respect to the Mortgage Loans, shall acknowledge with respect
to each
Mortgage Loan by delivery to the Depositor and the Trustee of an
Initial
Certification receipt of the Mortgage File, but without review of
such Mortgage
File, except to the extent necessary to confirm that such Mortgage
File contains
the related Mortgage Note or lost note affidavit. No later than 90
days after
the Closing Date (or, with respect to any Substitute Mortgage Loan,
within five
Business Days after the receipt by the Trustee or Custodian
thereof), the
Trustee agrees, for the benefit of the related Certificateholders,
to review or
cause to be reviewed by the Custodian on its behalf (under the
Custodial
Agreement), each Mortgage File delivered to it and to execute and
deliver, or
cause to be executed and delivered, to the Depositor and the
Trustee an Interim
Certification. In conducting such review, the Trustee or Custodian
will
ascertain whether all required documents have been executed and
received, and
based on the Mortgage Loan Schedule, whether those documents
relate, determined
on the basis of the Mortgagor name, original principal balance and
loan number,
to the Mortgage Loans it has received, as identified in the
Mortgage Loan
Schedule. In performing any such review, the Trustee or the
Custodian, as its
agent, may conclusively rely on the purported due execution and
genuineness of
any such document and on the purported genuineness of any signature
thereon. If
the Trustee or the Custodian, as its agent, finds any document
constituting part
of the Mortgage File has not been executed or received, or to be
unrelated,
determined on the basis of the Mortgagor name, original principal
balance and
loan number, to the Mortgage Loans identified in Exhibit B or to
appear
defective on its face (a "Material Defect"), the Trustee or the
Custodian, as
its agent, shall promptly notify the Seller. In accordance with the
Mortgage
Loan Purchase Agreement, the Seller shall correct or cure any such
defect within
ninety (90) days from the date of notice from the Trustee or the
Custodian, as
its agent, of the defect and if the Seller fails to correct or cure
the defect
within such period, and such defect materially and adversely
affects the
interests of the related Certificateholders in the related Mortgage
Loan, the
Trustee shall enforce the Seller's obligation under the Mortgage
Loan Purchase
Agreement to, within 90 days from the Trustee's or the Custodian's
notification,
provide a Substitute Mortgage Loan (if within two years of the
Closing Date) or
purchase such Mortgage Loan at the Repurchase Price; provided that,
if such
defect would cause the Mortgage Loan to be other than a "qualified
mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or
repurchase must
occur within 90 days from the date such breach was discovered;
provided,
however, that if such defect relates solely to the inability of the
Seller to
deliver the original Security Instrument or intervening assignments
thereof, or
a certified copy because the originals of such documents, or a
certified copy
have not been returned by the applicable jurisdiction, the Seller
shall not be
required to purchase such Mortgage Loan if the Seller delivers such
original
documents or certified copy promptly upon receipt, but in no event
later than
360 days after the Closing Date. The foregoing repurchase
obligation shall not
apply in the event that the Seller cannot deliver such original or
copy of any
document submitted for recording to the appropriate recording
office in the
applicable jurisdiction because such document has not been returned
by such
office; provided that the Seller shall instead deliver a recording
receipt of
such recording office or, if such receipt is not available, a
certificate
confirming that such documents have been accepted for recording,
and delivery to
the Trustee or the Custodian, as its agent, shall be effected by
the Seller
within thirty days of its receipt of the original recorded
document.
(b) No later than 180 days after the Closing Date, the Trustee or
the
Custodian, as its agent, will review, for the benefit of the
Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or
cause to be
executed and delivered to the Depositor and the Trustee a Final
Certification.
In conducting such review, the Trustee or the Custodian, as its
agent, will
ascertain whether an original of each document required to be
recorded has been
returned from the recording office with evidence of recording
thereon or a
certified copy has been obtained from the recording office. If the
Trustee or
the Custodian, as its agent, finds a Material Defect, the Trustee
or the
Custodian, as its agent, shall promptly notify the Seller
(provided, however,
that with respect to those documents described in subsections
(b)(I)(iv), (v),
and (vii) of Section 2.01 and subsection (b)(II)(ix) of Section
2.01, the
Trustee's and Custodian's obligations shall extend only to the
documents
actually delivered to the Custodian pursuant to such subsections).
In accordance
with the Mortgage Loan Purchase Agreement, the Seller shall correct
or cure any
such defect within 90 days from the date of notice from the Trustee
or the
Custodian, as its agent, of the Material Defect and if the Seller
is unable to
cure such defect within such period, and if such defect materially
and adversely
affects the interests of the related Certificateholders in the
related Mortgage
Loan, the Trustee shall enforce the Seller's obligation under the
Mortgage Loan
Purchase Agreement to, within 90 days from the Trustee's or
Custodian's
notification, provide a Substitute Mortgage Loan (if within two
years of the
Closing Date) or purchase such Mortgage Loan at the Repurchase
Price, provided
that, if such defect would cause the Mortgage Loan to be other than
a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure,
repurchase or substitution must occur within 90 days from the date
such breach
was discovered, provided, however, that if such defect relates
solely to the
inability of the Seller to deliver the original Security Instrument
or
intervening assignments thereof, or a certified copy, because the
originals of
such documents or a certified copy, have not been returned by the
applicable
jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan,
if the Seller delivers such original documents or certified copy
promptly upon
receipt, but in no event later than 360 days after the Closing
Date. The
foregoing repurchase obligation shall not apply in the event that
the Seller
cannot deliver such original or copy of any document submitted for
recording to
the appropriate recording office in the applicable jurisdiction
because such
document has not been returned by such office; provided that the
Seller shall
instead deliver a recording receipt of such recording office or, if
such receipt
is not available, a certificate confirming that such documents have
been
accepted for recording, and delivery to the Trustee or the
Custodian, as its
agent, shall be effected by the Seller within thirty days of its
receipt of the
original recorded document.
(c) In the event that a Mortgage Loan is purchased by the Seller
in
accordance with Subsections 2.02(a) or (b) above, the Seller shall
remit to the
Master Servicer the Repurchase Price for deposit in the Master
Servicer
Collection Account and the Seller shall provide to the Securities
Administrator
and the Trustee written notification detailing the components of
the Repurchase
Price. Upon deposit of the Repurchase Price in the Master Servicer
Collection
Account, the Depositor shall notify the Trustee and the Custodian,
as agent of
the Trustee (upon receipt of a Request for Release in the form of
Exhibit D
attached hereto with respect to such Mortgage Loan), shall release
to the Seller
the related Mortgage File and the Trustee shall execute and deliver
all
instruments of transfer or assignment, without recourse,
representation or
warranty, furnished to it by the Seller, as are necessary to vest
in the Seller
title to and rights under the Mortgage Loan. Such purchase shall be
deemed to
have occurred on the date on which the Repurchase Price in
immediately available
funds is received by the Paying Agent. The Master Servicer shall
amend the
Mortgage Loan Schedule, which was previously delivered to it by the
Depositor in
a form agreed to between the Depositor, the Master Servicer and the
Trustee, to
reflect such repurchase and shall promptly notify the Rating
Agencies and the
Securities Administrator of such amendment. The obligation of the
Seller to
repurchase or substitute for any Mortgage Loan a Substitute
Mortgage Loan as to
which such a defect in a constituent document exists shall be the
sole remedy
respecting such defect available to the related Certificateholders
or to the
Trustee on their behalf.
Section 2.03 ASSIGNMENT OF INTEREST IN THE MORTGAGE LOAN
PURCHASE
AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of
the
Certificateholders of the Certificates, all of its right, title and
interest in
the Mortgage Loan Purchase Agreement, including but not limited to
the
Depositor's rights and obligations pursuant to the Servicing
Agreements (noting
that the Seller has retained the right in the event of breach of
the
representations, warranties and covenants, if any, with respect to
the related
Mortgage Loans of the related Servicer under the related Servicing
Agreement to
enforce the provisions thereof and to seek all or any available
remedies). The
obligations of the Seller to substitute or repurchase, as
applicable, a Mortgage
Loan shall be the Trustee's and the related Certificateholders'
sole remedy for
any breach thereof. At the request of the Trustee, the Depositor
shall take such
actions as may be necessary to enforce the above right, title and
interest on
behalf of the Trustee, the related Certificateholders of the
Certificates shall
execute such further documents as the Trustee may reasonably
require in order to
enable the Trustee to carry out such enforcement.
(b) If the Depositor, the Securities Administrator or the
Trustee
discovers a breach of any of the representations and warranties set
forth in the
Mortgage Loan Purchase Agreement, which breach materially and
adversely affects
the value of the interests of related Certificateholders or the
Trustee in the
related Mortgage Loan, the party discovering the breach shall give
prompt
written notice of the breach to the other parties. The Seller,
within 90 days of
its discovery or receipt of notice that such breach has occurred
(whichever
occurs earlier), shall cure the breach in all material respects or,
subject to
the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as
applicable, shall purchase the Mortgage Loan or any property
acquired with
respect thereto from the Trustee; provided, however, that if there
is a breach
of any representation set forth in the Mortgage Loan Purchase
Agreement or
Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the
related property acquired with respect thereto has been sold, then
the Seller
shall pay, in lieu of the Repurchase Price, any excess of the
Repurchase Price
over the Net Liquidation Proceeds received upon such sale. If the
Net
Liquidation Proceeds exceed the Repurchase Price, any excess shall
be paid to
the Seller to the extent not required by law to be paid to the
borrower. Any
such purchase by the Seller shall be made by providing an amount
equal to the
Repurchase Price to the Master Servicer for deposit in the Master
Servicer
Collection Account and written notification detailing the
components of such
Repurchase Price to the Master Servicer. The Depositor shall notify
the Trustee
and submit to the Custodian, as agent for the Trustee, a Request
for Release,
and the Custodian shall release, or the Trustee shall cause the
Custodian to
release, to the Seller the related Mortgage File and the Trustee
shall execute
and deliver all instruments of transfer or assignment furnished to
it by the
Seller, without recourse, representation or warranty as are
necessary to vest in
the Seller title to and rights under the Mortgage Loan or any
property acquired
with respect thereto. Such purchase shall be deemed to have
occurred on the date
on which the Repurchase Price in available funds is received by the
Trustee. The
Master Servicer shall amend the Mortgage Loan Schedule to reflect
such
repurchase and shall promptly notify the Trustee and the Rating
Agencies of such
amendment. Enforcement of the obligation of the Seller to purchase
(or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any
property
acquired with respect thereto (or pay the Repurchase Price as set
forth in the
above proviso) as to which a breach has occurred and is continuing
shall
constitute the sole remedy respecting such breach available to
the
Certificateholders or the Trustee on their behalf.
Section 2.04 SUBSTITUTION OF MORTGAGE LOANS.
Notwithstanding anything to the contrary in this Agreement, in lieu
of
purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement or
Sections 2.02 or 2.03 of this Agreement, the Seller may, no later
than the date
by which such purchase by the Seller would otherwise be required,
tender to the
Trustee a Substitute Mortgage Loan accompanied by a certificate of
an authorized
officer of the Seller that such Substitute Mortgage Loan conforms
to the
requirements set forth in the definition of "Substitute Mortgage
Loan" in this
Agreement; provided, however, that substitution pursuant to the
Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of
purchase shall not be permitted after the termination of the
two-year period
beginning on the Startup Day; provided, further, that if the breach
would cause
the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section
860G(a)(3) of the Code, any such cure or substitution must occur
within 90 days
from the date the breach was discovered. The Custodian, as agent
for the
Trustee, shall examine the Mortgage File for any Substitute
Mortgage Loan in the
manner set forth in Section 2.02(a) and the Trustee or the
Custodian, as its
agent, shall notify the Seller, in writing, within five Business
Days after
receipt, whether or not the documents relating to the Substitute
Mortgage Loan
satisfy the requirements of the fifth sentence of Subsection
2.02(a). Within two
Business Days after such notification, the Seller shall provide to
the Master
Servicer for deposit in the Master Servicer Collection Account the
amount, if
any, by which the Outstanding Principal Balance as of the next
preceding Due
Date of the Mortgage Loan for which substitution is being made,
after giving
effect to the Scheduled Principal due on such date, exceeds the
Outstanding
Principal Balance as of such date of the Substitute Mortgage Loan,
after giving
effect to Scheduled Principal due on such date, which amount shall
be treated
for the purposes of this Agreement as if it were the payment by the
Seller of
the Repurchase Price for the purchase of a Mortgage Loan by the
Seller. After
such notification to the Seller and, if any such excess exists,
upon receipt of
such deposit, the Trustee shall accept such Substitute Mortgage
Loan which shall
thereafter be deemed to be a Mortgage Loan hereunder. In the event
of such a
substitution, accrued interest on the Substitute Mortgage Loan for
the month in
which the substitution occurs and any Principal Prepayments made
thereon during
such month shall be the property of the Trust Fund and accrued
interest for such
month on the Mortgage Loan for which the substitution is made and
any Principal
Prepayments made thereon during such month shall be the property of
the Seller.
The Scheduled Principal on a Substitute Mortgage Loan due on the
Due Date in the
month of substitution shall be the property of the Seller and the
Scheduled
Principal on the Mortgage Loan for which the substitution is made
due on such
Due Date shall be the property of the Trust Fund. Upon acceptance
of the
Substitute Mortgage Loan (and delivery to the Custodian of a
Request for Release
for such Mortgage Loan), the Custodian, as agent for the Trustee,
shall release
to the Seller the related Mortgage File related to any Mortgage
Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this
Agreement, as applicable, and shall execute and deliver all
instruments of
transfer or assignment, without recourse, representation or
warranty in form as
provided to it as are necessary to vest in the Seller title to and
rights under
any Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement or
Section 2.04 of this Agreement, as applicable. The Seller shall
deliver to the
Custodian the documents related to the Substitute Mortgage Loan in
accordance
with the provisions of the Mortgage Loan Purchase Agreement or
Subsections
2.01(b) and 2.02(b) of this Agreement, as applicable, with the date
of
acceptance of the Substitute Mortgage Loan deemed to be the Closing
Date for
purposes of the time periods set forth in those Subsections. The
representations
and warranties set forth in the Mortgage Loan Purchase Agreement
shall be deemed
to have been made by the Seller with respect to each Substitute
Mortgage Loan as
of the date of acceptance of such Mortgage Loan by the Trustee. The
Master
Servicer shall amend the Mortgage Loan Schedule to reflect such
substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the
Trustee and
the Rating Agencies.
Section 2.05 ISSUANCE
OF CERTIFICATES.
(a) The Trustee acknowledges the assignment to it of the Mortgage
Loans
and the other assets comprising the Trust Funds and, concurrently
therewith, the
Certificate Registrar has signed, and countersigned and delivered
to the
Depositor, in exchange therefor, the Certificates in such
authorized
denominations representing such Fractional Undivided Interests as
the Depositor
has requested. The Trustee agrees that it will hold the Mortgage
Loans and such
other assets as may from time to time be delivered to it segregated
on the books
of the Trustee in trust for the benefit of the related
Certificateholders.
(b) The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the
Trustee without recourse all the right, title and interest of the
Depositor in
and to the REMIC I Regular Interests and the other assets of REMIC
III for the
benefit of the holders of the REMIC III Interests. The Trustee
acknowledges
receipt of the REMIC I Regular Interests (which are uncertificated)
and the
other assets of REMIC III and declares that it holds and will hold
the same in
trust for the exclusive use and benefit of the holders of the REMIC
III
Interests.
(c) The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the
Trustee without recourse all the right, title and interest of the
Depositor in
and to the REMIC II Regular Interests, the REMIC III Regular
Interests and the
other assets of REMIC IV for the benefit of the Holders of the
REMIC IV
Certificates. The Trustee acknowledges receipt of the REMIC II
Regular Interests
(which are uncertificated), the REMIC III Regular Interests (which
are
uncertificated) and the other assets of REMIC IV and declares that
it holds and
will hold the same in trust for the exclusive use and benefit of
the Holders of
the REMIC IV Certificates.
Section 2.06 REPRESENTATIONS AND WARRANTIES CONCERNING THE
DEPOSITOR.
The Depositor hereby represents and warrants to the Trustee, the
Master
Servicer and the Securities Administrator as follows:
(a) the Depositor (i) is a corporation duly organized, validly
existing
and in good standing under the laws of the State of Delaware and
(ii) is
qualified and in good standing as a foreign corporation to do
business in each
jurisdiction where such qualification is necessary, except where
the failure so
to qualify would not reasonably be expected to have a material
adverse effect on
the Depositor's business as presently conducted or on the
Depositor's ability to
enter into this Agreement and to consummate the transactions
contemplated
hereby;
(b) the Depositor has full corporate power to own its property,
to
carry on its business as presently conducted and to enter into and
perform its
obligations under this Agreement;
(c) the execution and delivery by the Depositor of this Agreement
have
been duly authorized by all necessary corporate action on the part
of the
Depositor; and neither the execution and delivery of this
Agreement, nor the
consummation of the transactions herein contemplated, nor
compliance with the
provisions hereof, will conflict with or result in a breach of, or
constitute a
default under, any of the provisions of any law, governmental rule,
regulation,
judgment, decree or order binding on the Depositor or its
properties or the
articles of incorporation or by-laws of the Depositor, except those
conflicts,
breaches or defaults which would not reasonably be expected to have
a material
adverse effect on the Depositor's ability to enter into this
Agreement and to
consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Depositor of
this
Agreement and the consummation of the transactions contemplated
hereby do not
require the consent or approval of, the giving of notice to, the
registration
with, or the taking of any other action in respect of, any state,
federal or
other governmental authority or agency, except those consents,
approvals,
notices, registrations or other actions as have already been
obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery
by the other
parties hereto, constitutes a valid and binding obligation of the
Depositor
enforceable against it in accordance with its terms (subject to
applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement
of the rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to
the
knowledge of the Depositor, threatened against the Depositor,
before or by any
court, administrative agency, arbitrator or governmental body (i)
with respect
to any of the transactions contemplated by this Agreement or (ii)
with respect
to any other matter which in the judgment of the Depositor will be
determined
adversely to the Depositor and will if determined adversely to the
Depositor
materially and adversely affect the Depositor's ability to enter
into this
Agreement or perform its obligations under this Agreement; and the
Depositor is
not in default with respect to any order of any court,
administrative agency,
arbitrator or governmental body so as to materially and adversely
affect the
transactions contemplated by this Agreement; and
(g) immediately prior to the transfer and assignment to the
Trustee,
each Mortgage Note and each Mortgage were not subject to an
assignment or
pledge, and the Depositor had good and marketable title to and was
the sole
owner thereof and had full right to transfer and sell such Mortgage
Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim
or security interest.
<PAGE>
ARTICLE III
Administration of the Trust Fund and Servicing of Mortgage
Loans
Section 3.01 MASTER SERVICER AND SECURITIES ADMINISTRATOR.
The Master Servicer shall supervise, monitor and oversee the
obligation
of the Servicers to service and administer their respective
Mortgage Loans in
accordance with the terms of the applicable Servicing Agreements
and shall have
full power and authority to do any and all things which it may deem
necessary or
desirable in connection with such master servicing and
administration. In
performing its obligations hereunder, the Master Servicer shall act
in a manner
consistent with Accepted Master Servicing Practices. Furthermore,
the Master
Servicer shall oversee and consult with each Servicer as necessary
from
time-to-time to carry out the Master Servicer's obligations
hereunder, shall
receive, review and evaluate all reports, information and other
data provided to
the Master Servicer by each Servicer and shall cause each Servicer
to perform
and observe the covenants, obligations and conditions to be
performed or
observed by such Servicer under its applicable Servicing Agreement.
The Master
Servicer shall independently and separately monitor each Servicer's
servicing
activities with respect to each related Mortgage Loan, reconcile
the results of
such monitoring with such information provided in the previous
sentence on a
monthly basis and coordinate corrective adjustments to the
Servicers' and Master
Servicer's records, and based on such reconciled and corrected
information, the
Master Servicer shall provide such information to the Securities
Administrator
as shall be necessary in order for it to prepare the statements
specified in
Section 6.05(a), and prepare any other information and statements
required to be
forwarded by the Master Servicer hereunder. The Master Servicer
shall reconcile
the results of its Mortgage Loan monitoring with the actual
remittances of the
Servicers pursuant to the applicable Servicing Agreements.
The Trustee shall furnish the Servicers and the Master Servicer
with
any powers of attorney and other documents in form as provided to
it necessary
or appropriate to enable the Servicers and the Master Servicer to
service and
administer the related Mortgage Loans and REO Property. The Trustee
shall be
indemnified by the Master Servicer for any costs, liabilities or
expenses
incurred by it in connection with such powers of attorney.
The Trustee or the Custodian shall provide access to the records
and
documentation in possession of the Trustee regarding the related
Mortgage Loans
and REO Property and the servicing thereof to the related
Certificateholders,
the FDIC, and the supervisory agents and examiners of the FDIC,
such access
being afforded only upon reasonable prior written request and
during normal
business hours at the office of the Trustee; provided, however,
that, unless
otherwise required by law, the Trustee shall not be required to
provide access
to such records and documentation if the provision thereof would
violate the
legal right to privacy of any Mortgagor. The Trustee shall allow
representatives
of the above entities to photocopy any of the records and
documentation and
shall provide equipment for that purpose at a charge that covers
the Trustee's
actual costs.
The Trustee shall execute and deliver to the related Servicer and
the
Master Servicer any court pleadings, requests for trustee's sale or
other
documents necessary or desirable to (i) the foreclosure or
trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to
obtain
judgment against any Mortgagor on the Mortgage Note or Security
Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any
other rights or remedies provided by the Mortgage Note or Security
Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee and the
Securities
Administrator shall act in accordance herewith to assure continuing
treatment of
such REMIC as a REMIC, and the Trustee and the Securities
Administrator shall
comply with any directions of the Depositor, the related Servicer
or the Master
Servicer to assure such continuing treatment. In particular, the
Trustee shall
not (a) sell or permit the sale of all or any portion of the
Mortgage Loans or
of any investment of deposits in an Account unless such sale is as
a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the
Trustee has
received a REMIC Opinion addressed to the Trustee prepared at the
expense of the
Trust Fund; and (b) other than with respect to a substitution
pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement,
as
applicable, accept any contribution to any REMIC after the Startup
Day without
receipt of a REMIC Opinion addressed to the Trustee.
Section 3.03 MONITORING OF SERVICERS.
(a) The Master Servicer shall be responsible for reporting to
the
Trustee and the Depositor the compliance by each Servicer with its
duties under
the related Servicing Agreement. In the review of each Servicer's
activities,
the Master Servicer may rely upon an officer's certificate of the
Servicer (or
similar document signed by an officer of the Servicer) with regard
to such
Servicer's compliance with the terms of its Servicing Agreement. In
the event
that the Master Servicer, in its judgment, determines that a
Servicer (other
than Wells Fargo) should be terminated in accordance with its
Servicing
Agreement, or that a notice should be sent pursuant to such
Servicing Agreement
with respect to the occurrence of an event that, unless cured,
would constitute
grounds for such termination, the Master Servicer shall notify the
Depositor and
the Trustee thereof and the Master Servicer shall issue such notice
or take such
other action as it deems appropriate. In the event that the Master
Servicer, in
its judgment, determines that Wells Fargo should be terminated in
accordance
with the Wells Fargo Servicing Agreement, or that a notice should
be sent
pursuant to the Wells Fargo Servicing Agreement with respect to the
occurrence
of an event that, unless cured, would constitute grounds for such
termination,
the Master Servicer shall notify the Depositor and the Trustee
thereof in
writing. Pursuant to its receipt of such written notification from
the Master
Servicer, the Trustee shall issue such notice of termination to
Wells Fargo or
take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer
under the
related Servicing Agreement, and shall, in the event that a
Servicer other than
Wells Fargo fails to perform its obligations in accordance with the
related
Servicing Agreement, subject to the preceding paragraph, terminate
the rights
and obligations of such Servicer thereunder and act as servicer of
the related
Mortgage Loans or to cause the Trustee to enter into a new
Servicing Agreement
with a successor Servicer selected by the Master Servicer;
provided, however, it
is understood and acknowledged by the parties hereto that there
will be a period
of transition (not to exceed 90 days) before the actual servicing
functions can
be fully transferred to such successor Servicer. In the event that
Wells Fargo
fails to perform its obligations in accordance with the Wells Fargo
Servicing
Agreement, subject to the preceding paragraph, the Master Servicer
shall notify
the Trustee in writing of such failure. Pursuant to its receipt of
such
notification from the Master Servicer, the Trustee shall terminate
the rights
and obligations of Wells Fargo under the Wells Fargo Servicing
Agreement and
enter in to a new Servicing Agreement with a successor Servicer
selected by the
Trustee; provided, however, it is understood and acknowledged by
the parties
hereto that there will be a period of transition (not to exceed 90
days) before
the actual servicing functions can be fully transferred to such
successor
Servicer. In either event, such enforcement, including, without
limitation, the
legal prosecution of claims, termination of Servicing Agreements
and the pursuit
of other appropriate remedies, shall be in such form and carried
out to such an
extent and at such time as the Master Servicer (or in the case
Wells Fargo is
terminated as the Servicer, the Trustee) in its good faith business
judgment,
would require were it the owner of the related Mortgage Loans. The
Master
Servicer shall pay the costs of such enforcement at its own
expense, provided
that the Master Servicer shall not be required to prosecute or
defend any legal
action except to the extent that the Master Servicer shall have
received
reasonable indemnity for its costs and expenses in pursuing such
action. In the
event that Wells Fargo is terminated as the Servicer, the Trustee
shall pay the
costs of such enforcement at its own expense, subject to its right
to be
reimbursed for such costs from the Master Servicer Collection
Account pursuant
to Section 3.03(c); provided that the Trustee shall not be required
to prosecute
or defend any legal action except to the extent that the Trustee
shall have
received reasonable indemnity for its costs and expenses in
pursuing such
action. Nothing herein shall impose any obligation on the part of
the Trustee to
assume or succeed to the duties or obligations of Wells Fargo or
the Master
Servicer.
(c) In the event that Wells Fargo is terminated as Servicer, to
the
extent that the costs and expenses of the Trustee related to any
termination of
Wells Fargo, or the enforcement or prosecution of related claims,
rights or
remedies, or the appointment of a successor Servicer (including,
without
limitation, (i) all legal costs and expenses and all due diligence
costs and
expenses associated with an evaluation of the potential termination
of the Wells
Fargo as a result of an event of default by Wells Fargo and (ii)
all costs and
expenses associated with the complete transfer of servicing,
including all
servicing files and all servicing data and the completion,
correction or
manipulation of such servicing data as may be required by the
successor Servicer
to correct any errors or insufficiencies in the servicing data or
otherwise to
enable the successor Servicer to service the Mortgage Loans in
accordance with
the related Servicing Agreement) are not fully and timely
reimbursed by Wells
Fargo after such termination, the Trustee shall be entitled to
reimbursement of
such costs and expenses from the Master Servicer Collection Account
(which the
Master Servicer hereby agrees to pay to the Trustee from the Master
Servicer
Collection Account upon demand) or, to the extent not paid from
such account,
the Trustee shall be entitled to reimburse itself for such costs
and expenses
from the Distribution Account. In all other cases, to the extent
that the costs
and expenses of the Master Servicer related to any termination of a
Servicer
(other than Wells Fargo), appointment of a successor Servicer or
the transfer
and assumption of servicing by the Master Servicer with respect to
any Servicing
Agreement (including, without limitation, (i) all legal costs and
expenses and
all due diligence costs and expenses associated with an evaluation
of the
potential termination of the Servicer as a result of an event of
default by such
Servicer and (ii) all costs and expenses associated with the
complete transfer
of servicing, including all servicing files and all servicing data
and the
completion, correction or manipulation of such servicing data as
may be required
by the successor servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the successor servicer to
service the
Mortgage Loans in accordance with the related Servicing Agreement)
are not fully
and timely reimbursed by the terminated Servicer, the Master
Servicer shall be
entitled to reimbursement of such costs and expenses from the
Master Servicer
Collection Account.
(d) The Master
Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the
related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer
(other than
Wells Fargo), if any, that it replaces.
Section 3.04 FIDELITY BOND.
The Master Servicer, at its expense, shall maintain in effect a
blanket
fidelity bond and an errors and omissions insurance policy,
affording coverage
with respect to all directors, officers, employees and other
Persons acting on
such Master Servicer's behalf, and covering errors and omissions in
the
performance of the Master Servicer's obligations hereunder. The
errors and
omissions insurance policy and the fidelity bond shall be in such
form and
amount generally acceptable for entities serving as master
servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES.
The Master Servicer shall master service the Mortgage Loans and
shall
have full power and authority, subject to the REMIC Provisions and
the
provisions of Article X hereof, to do any and all things that it
may deem
necessary or desirable in connection with the master servicing
and
administration of the Mortgage Loans, including but not limited to
the power and
authority (i) to execute and deliver, on behalf of the Holders of
the
Certificates and the Trustee, customary consents or waivers and
other
instruments and documents, (ii) to consent to transfers of any
Mortgaged
Property and assumptions of the Mortgage Notes and related
Mortgages, (iii) to
collect any Insurance Proceeds, Liquidation Proceeds and Subsequent
Recoveries,
and (iv) to effectuate foreclosure or other conversion of the
ownership of the
Mortgaged Property securing any Mortgage Loan, in each case, in
accordance with
the provisions of this Agreement and the related Servicing
Agreement, as
applicable; provided, however, that the Master Servicer shall not
(and,
consistent with its responsibilities under Section 3.03, shall not
permit any
Servicer to) knowingly or intentionally take any action, or fail to
take (or
fail to cause to be taken) any action reasonably within its control
and the
scope of duties more specifically set forth herein, that, under the
REMIC
Provisions, if taken or not taken, as the case may be, would cause
any related
REMIC to fail to qualify as a REMIC or result in the imposition of
a tax upon
the Trust Funds (including but not limited to the tax on prohibited
transactions
as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a
REMIC set forth in Section 860G(d) of the Code) unless the Master
Servicer has
received an Opinion of Counsel (but not at the expense of the
Master Servicer)
to the effect that the contemplated action would not cause any
REMIC to fail to
qualify as a REMIC or result in the imposition of a tax upon any
REMIC. The
Trustee shall furnish the Master Servicer, upon written request
from a Servicing
Officer, with any powers of attorney empowering the Master Servicer
or any
Servicer to execute and deliver instruments of satisfaction or
cancellation, or
of partial or full release or discharge, and to foreclose upon or
otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in
any court
action relating to the Mortgage Loans or the Mortgaged Property, in
accordance
with the related Servicing Agreement and this Agreement, and the
Trustee shall
execute and deliver such other documents, as the Master Servicer
may request, to
enable the Master Servicer to master service and administer the
Mortgage Loans
and carry out its duties hereunder, in each case in accordance with
Accepted
Master Servicing Practices (and the Trustee shall have no liability
for misuse
of any such powers of attorney by the Master Servicer or any
Servicer). If the
Master Servicer or the Trustee has been advised that it is likely
that the laws
of the state in which action is to be taken prohibit such action if
taken in the
name of the Trustee or that the Trustee would be adversely affected
under the
"doing business" or tax laws of such state if such action is taken
in its name,
the Master Servicer shall join with the Trustee in the appointment
of a
co-trustee pursuant to Section 9.11 hereof. In the performance of
its duties
hereunder, the Master Servicer shall be an independent contractor
and shall not,
except in those instances where it is taking action in the name of
the Trustee,
be deemed to be the agent of the Trustee.
Section 3.06 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
To the extent provided in the applicable Servicing Agreement, to
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the
Master
Servicer shall cause the Servicers to enforce such clauses in
accordance with
the applicable Servicing Agreement. If applicable law prohibits the
enforcement
of a due-on-sale clause or such clause is otherwise not enforced in
accordance
with the applicable Servicing Agreement, and, as a consequence, a
Mortgage Loan
is assumed, the original Mortgagor may be released from liability
in accordance
with the Servicing Agreement.
Section 3.07 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Mortgage
Loan, or
the receipt by any Servicer of a notification that payment in full
has been
escrowed in a manner customary for such purposes for payment to
related
Certificateholders on the next Distribution Date, the Servicer
will, if required
under the applicable Servicing Agreement (or if the applicable
Servicer does
not, the Master Servicer may), promptly furnish to the Custodian,
on behalf of
the Trustee, two copies of a certification substantially in the
form of Exhibit
D hereto signed by a Servicing Officer or in a mutually agreeable
electronic
format which will, in lieu of a signature on its face, originate
from a
Servicing Officer (which certification shall include a statement to
the effect
that all amounts received in connection with such payment that are
required to
be deposited in the Protected Account maintained by the applicable
Servicer
pursuant to Section 4.01 or by the applicable Servicer pursuant to
the
applicable Servicing Agreement have been or will be so deposited)
and shall
request that the Custodian, on behalf of the Trustee, deliver to
the Servicer
the related Mortgage File. Upon receipt of such certification and
request, the
Custodian, on behalf of the Trustee, shall promptly release the
related Mortgage
File to the Servicer and the Trustee and Custodian shall have no
further
responsibility with regard to such Mortgage File. Upon any such
payment in full,
each Servicer is authorized, to give, as agent for the Trustee, as
the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of
satisfaction
(or assignment of mortgage without recourse) regarding the
Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or
assignment, as the
case may be, shall be delivered to the Person or Persons entitled
thereto
against receipt therefor of such payment, it being understood and
agreed that no
expenses incurred in connection with such instrument of
satisfaction or
assignment, as the case may be, shall be chargeable to the
Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the
applicable Servicing
Agreement, the Trustee shall execute such documents as shall be
prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in
form
reasonably acceptable to the Trustee) and as are necessary to the
prosecution of
any such proceedings. The Custodian, on behalf of the Trustee,
shall, upon the
request of a Servicer or the Master Servicer, and delivery to the
Custodian, on
behalf of the Trustee, of two copies of a request for release
signed by a
Servicing Officer substantially in the form of Exhibit D (or in a
mutually
agreeable electronic format which will, in lieu of a signature on
its face,
originate from a Servicing Officer), release the related Mortgage
File held in
its possession or control to the Servicer or the Master Servicer.
Such trust
receipt shall obligate the Servicer or the Master Servicer to
return the
Mortgage File to the Custodian on behalf of the Trustee, when the
need therefor
by the Servicer or the Master Servicer no longer exists unless the
Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate
of a Servicing
Officer similar to that hereinabove specified, the Mortgage File
shall be
released by the Custodian, on behalf of the Trustee, to the
Servicer or the
Master Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the
extent
required by the related Servicing Agreement) shall transmit to the
Trustee or
Custodian such documents and instruments coming into the possession
of the
Master Servicer or such Servicer from time to time as are required
by the terms
hereof, or in the case of the Servicers, the applicable Servicing
Agreement, to
be delivered to the Trustee or Custodian. Any funds received by the
Master
Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are
collected by the Master Servicer or by a Servicer as Liquidation
Proceeds,
Insurance Proceeds or Subsequent Recoveries in respect of any
Mortgage Loan
shall be held for the benefit of the Trustee and the related
Certificateholders
subject to the Master Servicer's right to retain or withdraw from
the Master
Servicer Collection Account the Master Servicing Compensation and
other amounts
provided in this Agreement, and to the right of each Servicer to
retain its
Servicing Fee and other amounts as provided in the applicable
Servicing
Agreement. The Master Servicer shall, and (to the extent provided
in the
applicable Servicing Agreement) shall cause each Servicer to,
provide access to
information and documentation regarding the Mortgage Loans to the
Trustee, its
agents and accountants at any time upon reasonable request and
during normal
business hours, to related Certificateholders that are savings and
loan
associations, banks or insurance companies, the Office of Thrift
Supervision,
the FDIC and the supervisory agents and examiners of such Office
and Corporation
or examiners of any other federal or state banking or insurance
regulatory
authority if so required by applicable regulations of the Office of
Thrift
Supervision or other regulatory authority, such access to be
afforded without
charge but only upon reasonable request in writing and during
normal business
hours at the offices of the Master Servicer designated by it. In
fulfilling such
a request the Master Servicer shall not be responsible for
determining the
sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under
the
control of, the Master Servicer, in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from
Liquidation Proceeds,
Insurance Proceeds or Subsequent Recoveries, shall be held by the
Master
Servicer for and on behalf of the Trustee and the related
Certificateholders and
shall be and remain the sole and exclusive property of the Trustee;
provided,
however, that the Master Servicer and each Servicer shall be
entitled to setoff
against, and deduct from, any such funds any amounts that are
properly due and
payable to the Master Servicer or such Servicer under this
Agreement or the
applicable Servicing Agreement.
Section 3.09 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE
POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce
any
obligation of the Servicers under the related Servicing Agreements
to maintain
or cause to be maintained standard fire and casualty insurance and,
where
applicable, flood insurance, all in accordance with the provisions
of the
related Servicing Agreements. It is understood and agreed that such
insurance
shall be with insurers meeting the eligibility requirements set
forth in the
applicable Servicing Agreement and that no earthquake or other
additional
insurance is to be required of any Mortgagor or to be maintained on
property
acquired in respect of a defaulted loan, other than pursuant to
such applicable
laws and regulations as shall at any time be in force and as shall
require such
additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by
the
Servicers or the Master Servicer, or by any Servicer, under any
insurance
policies (other than amounts to be applied to the restoration or
repair of the
property subject to the related Mortgage or released to the
Mortgagor in
accordance with the applicable Servicing Agreement) shall be
deposited into the
Master Servicer Collection Account, subject to withdrawal pursuant
to Section
4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicer in
maintaining any such insurance if the Mortgagor defaults in its
obligation to do
so shall be added to the amount owing under the Mortgage Loan where
the terms of
the Mortgage Loan so permit; provided, however, that the addition
of any such
cost shall not be taken into account for purposes of calculating
the
distributions to be made to Certificateholders and shall be
recoverable by the
Master Servicer or such Servicer pursuant to Section 4.02 and
4.03.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall (to the extent provided in the
applicable
Servicing Agreement) cause the related Servicer to prepare and
present on behalf
of the Trustee and the Certificateholders all claims under the
Insurance
Policies and take such actions (including the negotiation,
settlement,
compromise or enforcement of the insured's claim) as shall be
necessary to
realize recovery under such policies. Any proceeds disbursed to the
Master
Servicer (or disbursed to a Servicer and remitted to the Master
Servicer) in
respect of such policies, bonds or contracts shall be promptly
deposited in the
Master Servicer Collection Account upon receipt, except that any
amounts
realized that are to be applied to the repair or restoration of the
related
Mortgaged Property as a condition precedent to the presentation of
claims on the
related Mortgage Loan to the insurer under any applicable Insurance
Policy need
not be so deposited (or remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE
POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to
the
extent such action is prohibited under the applicable Servicing
Agreement) to
take, any action that would result in noncoverage under any
applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of
the Master
Servicer or such Servicer, would have been covered thereunder. The
Master
Servicer shall use its best reasonable efforts to cause each
Servicer (to the
extent required under the related Servicing Agreement) to keep in
force and
effect (to the extent that the Mortgage Loan requires the Mortgagor
to maintain
such insurance), primary mortgage insurance applicable to each
Mortgage Loan in
accordance with the provisions of this Agreement and the related
Servicing
Agreement, as applicable. The Master Servicer shall not, and shall
not permit
any Servicer (to the extent required under the related Servicing
Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in
effect at the date of the initial issuance of the Mortgage Note and
is required
to be kept in force hereunder except in accordance with the
provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer
(to the extent required under the related Servicing Agreement) to
present, on
behalf of the Trustee and the Certificateholders, claims to the
insurer under
any Primary Mortgage Insurance Policies and, in this regard, to
take such
reasonable action as shall be necessary to permit recovery under
any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to
Section 4.01 and 4.02, any amounts collected by the Master Servicer
or any
Servicer under any Primary Mortgage Insurance Policies shall be
deposited in the
Master Servicer Collection Account, subject to withdrawal pursuant
to Sections
4.02 and 4.03.
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE
POLICIES
AND DOCUMENTS.
The Trustee (or the Custodian, as directed by the Trustee),
shall
retain possession and custody of the originals (to the extent
available) of any
Primary Mortgage Insurance Policies, or certificate of insurance if
applicable,
and any certificates of renewal as to the foregoing as may be
issued from time
to time as contemplated by this Agreement. Until all amounts
distributable in
respect of the Certificates have been distributed in full and the
Master
Servicer otherwise has fulfilled its obligations under this
Agreement, the
Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain
possession and custody of each Mortgage File in accordance with and
subject to
the terms and conditions of this Agreement. The Master Servicer
shall promptly
deliver or cause to be delivered to the Trustee (or the Custodian,
as directed
by the Trustee), upon the execution or receipt thereof the
originals of any
Primary Mortgage Insurance Policies, any certificates of renewal,
and such other
documents or instruments that constitute portions of the Mortgage
File that come
into the possession of the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Master Servicer shall cause each Servicer (to the extent
required
under the related Servicing Agreement) to foreclose upon, repossess
or otherwise
comparably convert the ownership of Mortgaged Properties securing
such of the
Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent
payments, all
in accordance with the applicable Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
The Master Servicer will be entitled to (i) the Master Servicing
Fee;
provided, that the aggregate Master Servicing Fee with respect to
any
Distribution Date shall be reduced by an amount equal to the
Compensating
Interest payable by the Master Servicer for such Distribution Date
pursuant to
Section 6.07 hereof, plus (ii) all income and gain realized from
any investment
of funds in the Distribution Account and the Master Servicer
Collection Account,
pursuant to Article IV, for the performance of its activities
hereunder.
Servicing compensation in the form of assumption fees, if any, late
payment
charges, as collected, if any, or otherwise (but not including any
prepayment
premium or penalty) shall be retained by the applicable Servicer
and shall not
be deposited in the Protected Account. The Master Servicer shall be
required to
pay all expenses incurred by it in connection with its activities
hereunder and
shall not be entitled to reimbursement therefor except as provided
in this
Agreement.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO
Property
in respect of any related Mortgage Loan, the deed or certificate of
sale shall
be issued to the Trustee, or to its nominee, on behalf of the
related
Certificateholders. The Master Servicer shall, to the extent
provided in the
applicable Servicing Agreement, cause the applicable Servicer to
sell any REO
Property as expeditiously as possible and in accordance with the
provisions of
this Agreement and the related Servicing Agreement, as applicable.
Pursuant to
its efforts to sell such REO Property, the Master Servicer shall
cause the
applicable Servicer to protect and conserve, such REO Property in
the manner and
to the extent required by the applicable Servicing Agreement, in
accordance with
the REMIC Provisions and in a manner that does not result in a tax
on "net
income from foreclosure property" or cause such REO Property to
fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code.
(b) The Master Servicer shall, to the extent required by the
related
Servicing Agreement, cause the applicable Servicer to deposit all
funds
collected and received in connection with the operation of any REO
Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the
final
disposition of any REO Property, shall be entitled to reimbursement
for any
related unreimbursed Monthly Advances and other unreimbursed
advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in
connection with
the final disposition of such REO Property; provided, that any such
unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be
reimbursed or paid,
as the case may be, prior to final disposition, out of any net
rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement,
the
Liquidation Proceeds from the final disposition of the REO
Property, net of any
payment to the Master Servicer and the applicable Servicer as
provided above
shall be deposited in the Protected Account on or prior to the
Determination
Date in the month following receipt thereof and be remitted by wire
transfer in
immediately available funds to the Master Servicer for deposit into
the related
Master Servicer Collection Account on the next succeeding Servicer
Remittance
Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee and the
Rating
Agencies on or before March 1 of each year, commencing on March 1,
2006, an
Officer's Certificate, certifying that with respect to the period
ending
December 31 of the prior year: (i) such Servicing Officer has
reviewed the
activities of such Master Servicer during the preceding calendar
year or portion
thereof and its performance under this Agreement, (ii) to the best
of such
Servicing Officer's knowledge, based on such review, such Master
Servicer has
performed and fulfilled its duties, responsibilities and
obligations under this
Agreement in all material respects throughout such year, or, if
there has been a
default in the fulfillment of any such duties, responsibilities or
obligations,
specifying each such default known to such Servicing Officer and
the nature and
status thereof, (iii) nothing has come to the attention of such
Servicing
Officer to lead such Servicing Officer to believe that any Servicer
has failed
to perform any of its duties, responsibilities and obligations
under its
Servicing Agreement in all material respects throughout such year,
or, if there
has been a material default in the performance or fulfillment of
any such
duties, responsibilities or obligations, specifying each such
default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the
Trustee at the
Master Servicer's expense if the Master Servicer failed to provide
such copies
(unless (i) the Master Servicer shall have failed to provide the
Trustee with
such statement or (ii) the Trustee shall be unaware of the Master
Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT.
If the Master Servicer has, during the course of any calendar
year,
directly serviced any of the Mortgage Loans, then the Master
Servicer at its
expense shall cause a nationally recognized firm of independent
certified public
accountants to furnish a statement to the Trustee, the Rating
Agencies and the
Depositor on or before March 1 of each year to the effect that,
with respect to
the most recently ended calendar year, such firm has examined
certain records
and documents relating to the Master Servicer's performance of its
servicing
obligations under this Agreement and pooling and servicing and
trust agreements
in material respects similar to this Agreement and to each other
and that, on
the basis of such examination conducted substantially in compliance
with the
audit program for mortgages serviced for Freddie Mac or the Uniform
Single
Attestation Program for Mortgage Bankers, such firm is of the
opinion that the
Master Servicer's activities have been conducted in compliance with
this
Agreement, or that such examination has disclosed no material items
of
noncompliance except for (i) such exceptions as such firm believes
to be
immaterial, (ii) such other exceptions as are set forth in such
statement and
(iii) such exceptions that the Uniform Single Attestation Program
for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Freddie Mac
requires it
to report. Copies of such statements shall be provided to any
Certificateholder
upon request by the Master Servicer, or by the Trustee at the
expense of the
Master Servicer if the Master Servicer shall fail to provide such
copies but
only if the Master Servicer has provided the Trustee with such
statement. If
such report discloses exceptions that are material, the Master
Servicer shall
advise the Trustee whether such exceptions have been or are
susceptible of cure,
and will take prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE
COMMISSION.
Within 15 days after each Distribution Date, the Securities
Administrator shall, in accordance with industry standards, file
with the
Commission via the Electronic Data Gathering and Retrieval System
("EDGAR"), a
Form 8-K (or other comparable form containing the comparable
information or
other information mutually agreed upon) with a copy of Certificate
Distribution
Report for such Distribution Date as an exhibit thereto. Prior to
January 30 in
any year, the Securities Administrator shall, in accordance with
industry
standards and only if instructed by the Depositor, file a Form 15
Suspension
Notice with respect to the Trust Fund, if applicable. Prior to (i)
March 15,
2006 and (ii) unless and until a Form 15 Suspension Notice shall
have been
filed, prior to March 15 of each year thereafter, the Master
Servicer shall
provide the Securities Administrator with a Master Servicer
Certification,
together with a copy of the annual independent accountant's
servicing report of
each Servicer and annual statement of compliance of each Servicer,
in each case,
required to be delivered pursuant to the related Servicing
Agreement, and, if
applicable, the annual independent accountant's servicing report
and annual
statement of compliance to be delivered by the Master Servicer
pursuant to
Sections 3.16 and 3.17. Prior to (i) March 31, 2006, or such
earlier filing date
as may be required by the Commission, and (ii) unless and until a
Form 15
Suspension Notice shall have been filed, March 31 of each year
thereafter, or
such earlier filing date as may be required by the Commission, the
Securities
Administrator shall file a Form 10-K, in substance conforming to
industry
standards, with respect to the Trust Fund. Such Form 10-K shall
include the
Master Servicer Certification and other documentation provided by
the Master
Servicer pursuant to the second preceding sentence. The Depositor
hereby grants
to the Securities Administrator a limited power of attorney to
execute and file
each such document on behalf of the Depositor. Such power of
attorney shall
continue until either the earlier of (i) receipt by the Securities
Administrator
from the Depositor of written termination of such power of attorney
and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly
furnish to the
Securities Administrator, from time to time upon request, such
further
information, reports and financial statements within its control
related to this
Agreement and the Mortgage Loans as the Securities Administrator
reasonably
deems appropriate to prepare and file all necessary reports with
the Commission.
The Securities Administrator shall have no responsibility to file
any items
other than those specified in this Section 3.18; provided, however,
the
Securities Administrator will cooperate with the Depositor in
connection with
any additional filings with respect to the Trust Fund as the
Depositor deems
necessary under the Securities Exchange Act of 1934, as amended
(the "Exchange
Act"). Fees and expenses incurred by the Securities Administrator
in connection
with this Section 3.18 shall not be reimbursable from the Trust
Fund.
Section 3.19 [Reserved].
Section 3.20 UCC.
The Depositor shall inform the Trustee in writing of any
Uniform
Commercial Code financing statements that were filed on the Closing
Date in
connection with the Trust with stamped recorded copies of such
financing
statements to be delivered to the Trustee promptly upon receipt by
the
Depositor. If directed by the Depositor in writing, the Trustee
will file any
continuation statements solely at the expense of the Depositor. The
Depositor
shall file any financing statements or amendments thereto required
by any change
in the Uniform Commercial Code.
Section 3.21 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
(a) With respect to any Mortgage Loan which as of the first day of
a
Fiscal Quarter is delinquent in payment by 90 days or more or is an
REO
Property, the Company shall have the right to purchase such
Mortgage Loan from
the Trust at a price equal to the Repurchase Price; provided
however (i) that
such Mortgage Loan is still 90 days or more delinquent or is an REO
Property as
of the date of such purchase and (ii) this purchase option, if not
theretofore
exercised, shall terminate on the date prior to the last day of the
related
Fiscal Quarter. This purchase option, if not exercised, shall not
be thereafter
reinstated unless the delinquency is cured and the Mortgage Loan
thereafter
again becomes 90 days or more delinquent or becomes an REO
Property, in which
case the option shall again become exercisable as of the first day
of the
related Fiscal Quarter.
(b) If at any time the Company remits to the Master Servicer a
payment
for deposit in the Master Servicer Collection Account covering the
amount of the
Repurchase Price for such a Mortgage Loan, and the Company provides
to the
Trustee a certification signed by a Servicing Officer stating that
the amount of
such payment has been deposited in the Master Servicer Collection
Account, then
the Trustee shall execute the assignment of such Mortgage Loan to
the Company at
the request of the Company without recourse, representation or
warranty and the
Company shall succeed to all of the Trustee's right, title and
interest in and
to such Mortgage Loan, and all security and documents relative
thereto. Such
assignment shall be an assignment outright and not for security.
The Company
will thereupon own such Mortgage, and all such security and
documents, free of
any further obligation to the Trustee or the Certificateholders
with respect
thereto.
<PAGE>
ARTICLE IV
Accounts
Section 4.01 PROTECTED ACCOUNT.
(a) The Master Servicer shall enforce the obligation of each
Servicer
to establish and maintain a Protected Account in accordance with
the applicable
Servicing Agreement, with records to be kept with respect thereto
on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited
within 48
hours (or as of such other time specified in the related Servicing
Agreement) of
receipt, all collections of principal and interest on any Mortgage
Loan and any
REO Property received by a Servicer, including Principal
Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and advances
made from the
Servicer's own funds (less servicing compensation as permitted by
the applicable
Servicing Agreement in the case of any Servicer) and all other
amounts to be
deposited in the Protected Account. The Servicer is hereby
authorized to make
withdrawals from and deposits to the related Protected Account for
purposes
required or permitted by this Agreement. To the extent provided in
the related
Servicing Agreement, the Protected Account shall be held by a
Designated
Depository Institution and segregated on the books of such
institution in the
name of the Trustee for the benefit of Holders of the
Certificates.
(b) To the extent provided in the related Servicing Agreement,
amounts
on deposit in a Protected Account may be invested in Permitted
Investments in
the name of the Trustee for the benefit of Holders of the
Certificates and,
except as provided in the preceding paragraph, not commingled with
any other
funds. Such Permitted Investments shall mature, or shall be subject
to
redemption or withdrawal, no later than the date on which such
funds are
required to be withdrawn for deposit in the Master Servicer
Collection Account,
and shall be held until required for such deposit. The income
earned from
Permitted Investments made pursuant to this Section 4.01 shall be
paid to the
related Servicer under the applicable Servicing Agreement, and the
risk of loss
of moneys required to be distributed to the Holders of the
Certificates
resulting from such investments shall be borne by and be the risk
of the related
Servicer. The related Servicer (to the extent provided in the
Servicing
Agreement) shall deposit the amount of any such loss in the
Protected Account
within two Business Days of receipt of notification of such loss
but not later
than the second Business Day prior to the Distribution Date on
which the moneys
so invested are required to be distributed to the Holders of the
Certificates.
(c) To the extent provided in the related Servicing Agreement
and
subject to this Article IV, on or before each Servicer Remittance
Date, the
related Servicer shall withdraw or shall cause to be withdrawn from
its
Protected Accounts and shall immediately deposit or cause to be
deposited in the
Master Servicer Collection Account amounts representing the
following
collections and payments (other than with respect to principal of
or interest on
the Mortgage Loans due on or before the Cut-off Date):
(i) Scheduled Payments on the Mortgage Loans received or any
related portion thereof advanced by such Servicer pursuant to its
Servicing
Agreement which were due on or before the related Due Date, net of
the amount
thereof comprising its Servicing Fee or any fees with respect to
any lender-paid
primary mortgage insurance policy;
(ii) Full Principal Prepayments and any Liquidation Proceeds
or Subsequent Recoveries received by such Servicer with respect to
the Mortgage
Loans in the related Prepayment Period, with interest to the date
of prepayment
or liquidation, net of the amount thereof comprising its Servicing
Fee;
(iii) Partial Principal Prepayments received by such Servicer
for the Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make
remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master
Servicer or
a Servicer for Monthly Advances which have been recovered by
subsequent
collections from the related Mortgagor; to remove amounts deposited
in error; to
remove fees, charges or other such amounts deposited on a temporary
basis; or to
clear and terminate the account at the termination of the Trust
Fund in
accordance with Section 10.01. As provided in Sections 4.01(a) and
4.02(b)
certain amounts otherwise due to the Servicers may be retained by
them and need
not be deposited in the Master Servicer Collection Account.
Section 4.02 MASTER SERVICER COLLECTION ACCOUNT.
(a) The Master Servicer shall establish and maintain in the name of
the
Trustee, for the benefit of the Holders of the Certificates, the
Master Servicer
Collection Account as a segregated trust account or accounts. The
Master
Servicer Collection Account shall be an Eligible Account. The
Master Servicer
will deposit in the Master Servicer Collection Account as
identified by the
Master Servicer and as received by the Master Servicer, the
following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Master
Servicer or which
were not deposited in a Protected Account;
(iv) The Repurchase Price with respect to any Mortgage Loans
purchased by the Seller pursuant to the Mortgage Loan Purchase
Agreement or
Sections 2.02 or 2.03 hereof, any amounts which are to be treated
pursuant to
Section 2.04 of this Agreement as the payment of a Repurchase Price
in
connection with the tender of a Substitute Mortgage Loan by the
Seller, the
Repurchase Price with respect to any Mortgage Loans purchased by
the Company
pursuant to Section 3.21, and all proceeds of any Mortgage Loans or
property
acquired with respect thereto repurchased by the Depositor or its
designee
pursuant to Section 10.01;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer
Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection
Account
shall be held by the Master Servicer in the name of the Trustee in
trust for the
benefit of the Certificateholders in accordance with the terms and
provisions of
this Agreement. The requirements for crediting the Master Servicer
Collection
Account or the Distribution Account shall be exclusive, it being
understood and
agreed that, without limiting the generality of the foregoing,
payments in the
nature of (i) prepayment or late payment charges or assumption, tax
service,
statement account or payoff, substitution, satisfaction, release
and other like
fees and charges and (ii) the items enumerated in Subsections
4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (x), (xi) and (xii), need
not be
credited by the Master Servicer or the related Servicer to the
Distribution
Account or the Master Servicer Collection Account, as applicable.
In the event
that the Master Servicer shall deposit or cause to be deposited to
the
Distribution Account any amount not required to be credited
thereto, the
Trustee, upon receipt of a written request therefor signed by a
Servicing
Officer of the Master Servicer, shall promptly transfer such amount
to the
Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The amount at any time credited to the Master Servicer
Collection
Account may be invested, in the name of the Trustee, or its
nominee, for the
benefit of the Holders of the Certificates, in Permitted
Investments as directed
by Master Servicer. All Permitted Investments shall mature or be
subject to
redemption or withdrawal on or before, and shall be held until, the
next
succeeding Distribution Account Deposit Date. Any and all
investment earnings on
amounts on deposit in the Master Servicer Account from time to time
shall be for
the account of the Master Servicer. The Master Servicer from time
to time shall
be permitted to withdraw or receive distribution of any and all
investment
earnings from the Master Servicer Collection Account. The risk of
loss of moneys
required to be distributed to the Holders of the Certificates
resulting from
such investments shall be borne by and be the risk of the Master
Servicer. The
Master Servicer shall deposit the amount of any such loss in the
Master Servicer
Collection Account within two Business Days of receipt of
notification of such
loss but not later than the second Business Day prior to the
Distribution Date
on which the moneys so invested are required to be distributed to
the
Certificateholders.
Section 4.03 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
MASTER
SERVICER COLLECTION ACCOUNT.
(a) The Master Servicer will, from time to time on demand of a
Servicer
or the Securities Administrator, make or cause to be made such
withdrawals or
transfers from the Master Servicer Collection Account as the Master
Servicer has
designated for such transfer or withdrawal pursuant to this
Agreement and the
related Servicing Agreement. The Master Servicer may clear and
terminate the
Master Servicer Collection Account pursuant to Section 10.01 and
remove amounts
from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from
the
Master Servicer Collection Account (i) any expenses, costs and
liabilities
recoverable by the Trustee, the Master Servicer or the Securities
Administrator
or the Custodian pursuant to Sections 3.03, 7.03 and 9.05 and (ii)
any amounts
payable to the Master Servicer as set forth in Section 3.14;
provided however,
that the Master Servicer shall be obligated to pay from its own
funds any
amounts which it is required to pay under Section 7.03(a).
(c) In addition, on or before each Distribution Account Deposit
Date,
the Master Servicer shall deposit in the Distribution Account (or
remit to the
Trustee for deposit therein) any Monthly Advances required to be
made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution
Account
Deposit Date, the Master Servicer will transfer all Available Funds
on deposit
in the Master Servicer Collection Account with respect to the
related
Distribution Date to the Paying Agent for deposit in the
Distribution Account.
Section 4.04 DISTRIBUTION ACCOUNT.
(a) The Paying Agent shall establish and maintain in the name of
the
Paying Agent, for the benefit of the related Certificateholders,
the
Distribution Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held
by
the Paying Agent in the name of the Paying Agent in trust for the
benefit of the
related Certificateholders in accordance with the terms and
provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of
the
Trust Fund segregated on the books of the Paying Agent and held by
the Paying
Agent in trust in its Corporate Trust Office, and the Distribution
Account and
the funds deposited therein shall not be subject to, and shall be
protected
from, all claims, liens, and encumbrances of any creditors or
depositors of the
Paying Agent or the Master Servicer (whether made directly, or
indirectly
through a liquidator or receiver of the Paying Agent or the Master
Servicer).
The Distribution Account shall be an Eligible Account. The amount
at any time
credited to the Distribution Account shall be (i) held in cash and
fully insured
by the FDIC to the maximum coverage provided thereby or (ii)
invested in the
name of the Paying Agent, in such Permitted Investments as may be
selected by
the Master Servicer or deposited in demand deposits with such
depository
institutions as may be selected by the Master Servicer, provided
that time
deposits of such depository institutions would be a Permitted
Investment. All
Permitted Investments shall mature or be subject to redemption or
withdrawal on
or before, and shall be held until, the next succeeding
Distribution Date if the
obligor for such Permitted Investment is the Paying Agent or, if
such obligor is
any other Person, the Business Day preceding such Distribution
Date. All
investment earnings on amounts on deposit in the Distribution
Account or benefit
from funds uninvested therein from time to time shall be for the
account of the
Master Servicer. The Master Servicer shall be permitted to withdraw
or receive
distribution of any and all investment earnings from the
Distribution Account on
each Distribution Date. If there is any loss on a Permitted
Investment or demand
deposit, the Master Servicer shall remit the amount of the loss to
the Paying
Agent who shall deposit such amount in the Distribution Account.
With respect to
the Distribution Account and the funds deposited therein, the
Master Servicer
shall take such action as may be necessary to ensure that the
related
Certificateholders shall be entitled to the priorities afforded to
such a trust
account (in addition to a claim against the estate of the Paying
Agent) as
provided by 12 U.S.C. ss. 92a(e), and applicable regulations
pursuant thereto,
if applicable, or any applicable comparable state statute
applicable to state
chartered banking corporations.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
DISTRIBUTION
ACCOUNT.
(a) The Paying Agent will, from time to time on written demand of
the
Master Servicer or the Securities Administrator, make or cause to
be made such
withdrawals or transfers from the Distribution Account as the
Master Servicer
has designated for such transfer or withdrawal pursuant to this
Agreement and
the Servicing Agreements or as the Securities Administrator has
instructed
hereunder for the following purposes (limited in the case of
amounts due the
Master Servicer to those not withdrawn from the Master Servicer
Collection
Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any
Monthly Advance of its own funds, the right of the Master Servicer
or a
Servicer to reimbursement pursuant to this subclause (i) being
limited
to amounts received on a particular Mortgage Loan (including, for
this
purpose, the Repurchase Price therefor, Insurance Proceeds,
Liquidation
Proceeds and Subsequent Recoveries) which represent late payments
or
recoveries of the principal of or interest on such Mortgage
Loan
respecting which such Monthly Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from
Insurance
Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or
such
Servicer in good faith in connection with the restoration of
the
related Mortgaged Property which was damaged by an Uninsured Cause
or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for
insured
expenses incurred with respect to such Mortgage Loan and to
reimburse
the Master Servicer or such Servicer from Liquidation Proceeds from
a
particular Mortgage Loan for Liquidation Expenses incurred with
respect
to
such Mortgage Loan; provided that the Master Servicer shall not
be
entitled to reimbursement for Liquidation Expenses with respect to
a
Mortgage Loan to the extent that (i) any amounts with respect to
such
Mortgage Loan were paid as Excess Liquidation Proceeds pursuant
to
clause (xi) of this Subsection 4.03 (a) to the Master Servicer;
and
(ii) such Liquidation Expenses were not included in the computation
of
such Excess Liquidation Proceeds;
(iv) to reimburse the Master Servicer or any Servicer for
advances of funds (other than Monthly Advances) made with respect
to
the Mortgage Loans, and the right to reimbursement pursuant to
this
subclause being limited to amounts received on the related
Mortgage
Loan (including, for this purpose, the Repurchase Price
therefor,
Insurance Proceeds, Liquidation Proceeds and Subsequent
Recoveries)
which represent late recoveries of the payments for which such
advances
were made;
(v) to reimburse the Master Servicer or any Servicer for any
Monthly Advance or advance, after a Realized Loss has been
allocated
with respect to the related Mortgage Loan if the Monthly Advance
or
advance has not been reimbursed pursuant to clauses (i) and
(iv);
(vi) to pay the Master Servicer as set forth in Section 3.14;
(vii) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to
Sections
3.03, 7.04(c) and (d);
(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not
retained by the related Servicer;
(ix) to reimburse or pay any Servicer any such amounts as are
due thereto under the applicable Servicing Agreement and have not
been
retained by or paid to the Servicer, to the extent provided in
the
related Servicing Agreement;
(x) to reimburse the Trustee, the Securities Administrator or
the Custodian for expenses, costs and liabilities incurred by
or
reimbursable to it pursuant to this Agreement and the Custodial
Agreement;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Distribution Account pursuant
to Section 10.01.
(b) The Master Servicer shall keep and maintain separate
accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any
reimbursement from the Distribution Account pursuant to subclauses
(i) through
(iv) or with respect to any such amounts which would have been
covered by such
subclauses had the amounts not been retained by the Master Servicer
without
being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Paying Agent shall distribute
the
Available Funds to the extent on deposit in the Distribution
Account to the
Holders of the Certificates in accordance with written distribution
instructions
provided to it by the Securities Administrator no later than two
Business Days
prior to such Distribution Date and determined by the Securities
Administrator
in accordance with Section 6.01.
<PAGE>
ARTICLE V
Certificates
Section 5.01 CERTIFICATES.
(a) The Depository, the Depositor and the Trustee have entered into
a
Depository Agreement dated as of the Closing Date (the "Depository
Agreement").
Except for the Residual Certificates, the Non-Offered Certificates
(which are
also Physical Certificates) and the Individual Certificates and as
provided in
Subsection 5.01(b), the Certificates shall at all times remain
registered in the
name of the Depository or its nominee and at all times: (i)
registration of such
Certificates may not be transferred by the Certificate Registrar
except to a
successor to the Depository; (ii) ownership and transfers of
registration of
such Certificates on the books of the Depository shall be governed
by applicable
rules established by the Depository; (iii) the Depository may
collect its usual
and customary fees, charges and expenses from its Depository
Participants; (iv)
the Certificate Registrar shall deal with the Depository as
representative of
such Certificate Owners of the respective Class of Certificates for
purposes of
exercising the rights of the related Certificateholders under this
Agreement,
and requests and directions for and votes of such representative
shall not be
deemed to be inconsistent if they are made with respect to
different Certificate
Owners; and (v) the Certificate Registrar may rely and shall be
fully protected
in relying upon information furnished by the Depository with
respect to its
Depository Participants.
The Residual Certificates and the Non-Offered Certificates are
initially Physical Certificates. If at any time the Holders of all
of the
Certificates of one or more such Classes request that the
Certificate Registrar
cause such Class to become Global Certificates, the Certificate
Registrar and
the Depositor will take such action as may be reasonably required
to cause the
Depository to accept such Class or Classes for trading if it may
legally be so
traded.
All transfers by Certificate Owners of such respective Classes
of
Book-Entry Certificates and any Global Certificates shall be made
in accordance
with the procedures established by the Depository Participant or
brokerage firm
representing such Certificate Owners. Each Depository Participant
shall only
transfer Book-Entry Certificates of Certificate Owners it
represents or of
brokerage firms for which it acts as agent in accordance with the
Depository's
normal procedures.
(b) If (i)(A) the Depositor advises the Certificate Registrar
in
writing that the Depository is no longer willing or able to
properly discharge
its responsibilities as Depository and (B) the Depositor is unable
to locate a
qualified successor within 30 days or (ii) the Depositor at its
option advises
the Certificate Registrar in writing that it elects to terminate
the book-entry
system through the Depository, the Certificate Registrar shall
request that the
Depository notify all Certificate Owners of the occurrence of any
such event and
of the availability of definitive, fully registered Certificates to
Certificate
Owners requesting the same. Upon surrender to the Certificate
Registrar of the
Certificates by the Depository, accompanied by registration
instructions from
the Depository for registration, the Certificate Registrar shall
issue the
definitive Certificates. Neither the Depositor nor the Certificate
Registrar
shall be liable for any delay in delivery of such instructions and
may
conclusively rely on, and shall be protected in relying on, such
instructions.
(c) (i) REMIC I will be evidenced by (x) the REMIC I Regular
Interests,
which will be uncertificated and non-transferable and are hereby
designated as
the "regular interests" in REMIC I and have the initial principal
amounts or
notional amount and accrue interest at the Pass-Through Rates equal
to those set
forth in this Section 5.01(c)(i), and (y) the Class I-R-1
Certificates, which
are hereby designated as the sole class of "residual interests" in
REMIC I (each
of the foregoing as designated below).
<TABLE>
<CAPTION>
REMIC I INTEREST INITIAL
PRINCIPAL AMOUNT PASS-THROUGH
RATE
RELATED SUBGROUP
----------------
------------------------
-----------------
----------------
<S>
<C>
<C>
<C>
1-Sub
$
1,667.35
7.0000%
Subgroup I-1
2-Sub
$
1,260.85
7.5000%
Subgroup I-2
3-Sub
$
2,431.32
8.0000%
Subgroup I-3
PO
$
928,088.74
0.0000%
Subgroup I-1
1-ZZZ
$ 25,355,681.95
7.0000%
Subgroup I-1
2-ZZZ
$ 19,166,584.43
7.5000%
Subgroup I-2
3-ZZZ
$ 36,985,885.96
8.0000%
Subgroup I-3
X
(1)
(2)
Subgroup 1-3
I-R-2
$
50.00
0.0000%
N/A
I-R-3
$
50.00
0.0000%
N/A
Class I-R-1
$
50.00
0.0000%
N/A
</TABLE>
----------
(1) REMIC I Regular
Interest X will not have an initial principal amount but
will
accrue interest on its uncertificated notional amount calculated
in
accordance with the definition of "Uncertificated Notional Amount"
herein.
(2) A variable
pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group I Mortgage Loans
with Net
Mortgage Rates greater than 8.0000% per annum over (b) 8.0000% per
annum.
Interest shall be payable to the REMIC I Regular Interests at
the
applicable Pass-Through Rates on the related Uncertificated
Principal Balances
or Uncertificated Notional Amount. On the Distribution Date in
January 2006,
REMIC I will be deemed to distribute to REMIC III $50 in respect of
each of
REMIC I Regular Interest I-R-2 and REMIC I Regular Interest I-R-3
in reduction
of the Uncertificated Principal Balances thereof from the Class I-R
Deposit.
Distributions of principal shall be deemed to be made to the REMIC
I Regular
Interests, in each case from amounts received on the Group I
Mortgage Loans in
the related Subgroup, first, to the related REMIC I Regular
Interest ending with
the designation "Sub," so that the Uncertificated Principal Balance
of each such
REMIC I Regular Interest is equal to 0.1% of the excess of (x) the
aggregate
Scheduled Principal Balance of the Group I Mortgage Loans in the
related
Subgroup other than the related PO Percentage of the Scheduled
Principal Balance
of any Discount Mortgage Loan in Loan Group I over (y) the
aggregate Current
Principal Amount of the Group I Senior Certificates related to such
Subgroup
other than the Class I-PO Certificates (except that if any such
excess is a
larger number than in the preceding distribution period, the least
amount of
principal shall be distributed to such REMIC I Regular Interests
such that the
REMIC I Subordinated Balance Ratio is maintained); and second, any
remaining
principal from each Subgroup to the related REMIC I Regular
Interest ending with
the designation "ZZZ" (provided that a portion of the remaining
principal equal
to the Class I-PO Certificate Principal Distribution Amount
attributable to the
Discount Mortgage Loans in Loan Group I will be distributed to
REMIC I Regular
Interest PO). Realized Losses from each Subgroup shall be applied
after all
distributions have been made on each Distribution Date, first, to
the related
REMIC I Regular Interest ending with the designation "Sub," so that
the
Uncertificated Principal Balance of each such REMIC I Regular
Interest is equal
to 0.1% of the excess of (x) the aggregate Scheduled Principal
Balance of the
Mortgage Loans in the related Subgroup other than the related PO
Percentage of
the Scheduled Principal Balance of any Discount Mortgage Loan in
Loan Group I
over (y) the aggregate Current Principal Amount of the Group I
Senior
Certificates related to such Subgroup other than the Class I-PO
Certificates
(except that if any such excess is a larger number than in the
preceding
distribution period, the least amount of Realized Losses shall be
applied to
such REMIC I Regular Interests such that the REMIC I Subordinated
Balance Ratio
is maintained); and second, any remaining Realized Losses from each
Subgroup to
the related REMIC I Regular Interests ending with the designation
"ZZZ" (except
that if a Realized Loss is recognized with respect to a Discount
Mortgage Loan
in Loan Group I, the applicable portion of such Realized Loss will
be allocated
to REMIC I Regular Interest PO).
The aggregate amount of any Net Interest Shortfalls related to
the
Group I Mortgage Loans for any Distribution Date shall be allocated
to accrued
interest payable to the REMIC I Regular Interests other than REMIC
I Regular
Interest PO, PRO RATA, based on, and to the extent of, one month's
interest at
the then applicable respective Pass-Through Rates on the
respective
Uncertificated Principal Balances of each such REMIC I Regular
Interest.
(ii) REMIC II will be evidenced by (x) the REMIC II Regular
Interests,
which will be uncertificated and non-transferable and are hereby
designated as
the "regular interests" in REMIC II and have the initial principal
amounts and
notional amount and accrue interest at the Pass-Through Rates equal
to those set
forth in this Section 5.01(c)(ii), and (y) the Class II-R-1
Certificates, which
are hereby designated as the sole class of "residual interests" in
REMIC II
(each of the foregoing as designated below).
<TABLE>
<CAPTION>
REMIC II INTEREST INITIAL
PRINCIPAL AMOUNT PASS-THROUGH
RATE
RELATED SUBGROUP
-----------------
------------------------
-----------------
----------------
<S>
<C>
<C>
<C>
II-A-1
$
97,554,000.00
5.5000%
Loan Group II
II-A-2
$
7,815,000.00
5.5000%
Loan Group II
II-A-3
$
11,800,000.00
5.5000%
Loan Group II
II-A-4
$
464,000.00
5.5000%
Loan Group II
II-X
(1)
(2)
Loan Group II
II-PO
$
344,343.42
0.0000%
Loan Group II
Class II-R-1
$
100.00
0.0000%
N/A
II-B-1
$
1,840,000.00
5.5000%
Loan Group II
II-B-2
$
981,000.00
5.5000%
Loan Group II
II-B-3
$
674,000.00
5.5000%
Loan Group II
II-B-4
$
675,000.00
5.5000%
Loan Group II
II-B-5
$
245,000.00
5.5000%
Loan Group II
II-B-6
$
245,970.39
5.5000%
Loan Group II
</TABLE>
----------
(1) REMIC II Regular
Interest II-X will not have an initial principal amount
but
will accrue interest on its uncertificated notional amount
calculated
in
accordance with the definition of "Uncertificated Notional
Amount"
herein.
(2) A variable
pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group II Mortgage Loans
with Net
Mortgage Rates greater than 5.5000% per annum over (b) 5.5000% per
annum.
Interest shall be payable to the REMIC II Regular Interests at
the
applicable Pass-Through Rates on the related Uncertificated
Principal Balances
and Uncertificated Notional Amount. Principal shall be payable to,
and
shortfalls, losses and prepayments are allocable to, the REMIC II
Regular
Interests as such amounts are payable and allocable to the
Corresponding
Certificates.
(iii) REMIC III will be evidenced by (x) the REMIC III Regular
Interests, which will be uncertificated and non-transferable and
are hereby
designated as the "regular interests" in REMIC III and have the
initial
principal amounts or notional amount and accrue interest at the
Pass-Through
Rates equal to those set forth in this Section 5.01(c)(iii), and
(y) the Class
I-R-2 Certificates, which are hereby designated as the sole class
of "residual
interests" in REMIC III (each of the foregoing as designated
below).
<TABLE>
<CAPTION>
REMIC III INTEREST INITIAL
PRINCIPAL AMOUNT PASS-THROUGH
RATE
RELATED SUBGROUP
------------------
------------------------
-----------------
----------------
<S>
<C>
<C>
<C>
I-A-1
$
23,690,000.00
7.0000%
Loan Group I
I-A-2
$
17,907,000.00
7.5000%
Loan Group I
I-A-3
$
34,557,000.00
8.0000%
Loan Group I
I-X
(1)
(2)
Loan Group I
I-PO
$
928,088.74
0.0000%
Loan Group
I
I-R-3
$
50.00
0.0000%
N/A
Class I-R-2
$
50.00
0.0000%
N/A
I-B-1
$
1,608,000.00
(3)
Loan
Group I
I-B-2
$
1,072,000.00
(3)
Loan Group I
I-B-3
$
700,000.00
(3)
Loan Group I
I-B-4
$
1,526,000.00
(3)
Loan Group I
I-B-5
$
123,000.00
(3)
Loan Group I
I-B-6
$
330,511.86
(3)
Loan Group I
</TABLE>
----------
(1) REMIC III Regular
Interest I-X will not have an initial principal amount
but
will accrue interest on its uncertificated notional amount
calculated
in
accordance with the definition of "Uncertificated Notional
Amount"
herein.
(2) REMIC III Regular
Interest I-X will not have a Pass-Through Rate but will
be
entitled to receive 100% of the interest payable with respect to
REMIC I
Regular Interest X.
(3) REMIC III Regular
Interests I-B-1, I-B-2, I-B-3, I-B-4, I-B-5 and I-B-6
will
each bear interest at a variable rate equal to the weighted average
of
the
Pass-Through Rates on REMIC I Regular Interests 1-Sub, 2-Sub and
3-Sub,
weighted on the basis of the Uncertificated Principal Balances of
each such
REMIC I Regular Interest immediately preceding the related
Distribution
Date.
Interest shall be payable to the REMIC III Regular Interests at
the
applicable Pass-Through Rates on the related Uncertificated
Principal Balances
or Uncertificated Notional Amount. Principal shall be payable to,
and
shortfalls, losses and prepayments are allocable to, the REMIC III
Regular
Interests as such amounts are payable and allocable to the
Corresponding
Certificates; provided that, solely for purposes of the foregoing,
any
shortfalls or losses otherwise allocable to the Class I-XB
Certificates shall be
deemed to be allocated entirely to the Class I-B-1, Class I-B-2 and
Class I-B-3
Certificates on a pro rata basis.
(iv) REMIC IV will be evidenced by (x) the Certificates (other than
the
Class R Certificates), which are hereby designated as the "regular
interests" in
REMIC IV and have the initial principal amounts and notional
amounts and accrue
interest at the Pass-Through Rates equal to those set forth in this
Section
5.01(c)(iv), and (y) the Class I-R-3 Certificates, which are hereby
designated
as the sole class of "residual interests" in REMIC IV (each of the
foregoing as
designated below).
<TABLE>
<CAPTION>
DESIGNATION
INITIAL PRINCIPAL AMOUNT
PASS-THROUGH RATE
----------------------------------
----------------------------------------
-----------------------------------
<S>
<C>
<C>
I-A-1
$
23,690,000.00
7.00%
I-A-2
$
17,907,000.00
7.50%
I-A-3
$
34,557,000.00
8.00%
I-PO
$
928,088.74
0.00%
I-X
(1)
(2)
I-R-1
$
50.00
0.00%
I-R-2
$
50.00
0.00%
I-R-3
$
50.00
0.00%
I-B-1
$
1,608,000.00
6.00%
I-B-2
$
1,072,000.00
6.00%
I-B-3
$
700,000.00
6.00%
I-B-4
$
1,526,000.00
(3)
I-B-5
$
123,000.00
(3)
I-B-6
$
330,511.86
(3)
I-XB
(1)
(4)
II-A-1
$
97,554,000.00
5.50%
II-A-2
$
7,815,000.00
5.50%
II-A-3
$
11,800,000.00
5.50%
II-A-4
$
464,000.00
5.50%
II-PO
$
344,343.42
0.00%
II-X
(1)
(5)
II-R-1
$
100.00
0.00%
II-B-1
$
1,840,000.00
5.50%
II-B-2
$
981,000.00
5.50%
II-B-3
$
674,000.00
5.50%
II-B-4
$
675,000.00
5.50%
II-B-5
$
245,000.00
5.50%
II-B-6
$
245,970.39
5.50%
</TABLE>
----------
(1) As described in
the definition of Notional Amount herein.
(2) A variable
pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group I Mortgage Loans
with Net
Mortgage Rates greater than 8.00% per annum over (b) 8.00% per
annum;
provided that, for federal income tax purposes the Class I-X
Certificates
will not have a Pass-Through
Rate but will be entitled to receive 100% of
the
interest payable with respect to REMIC III Regular Interest
I-X.
(3) A variable
pass-through rate equal to the weighted average of 7.00%, 7.50%
and
8.00% per annum, weighted in proportion to the results of
subtracting
from
the aggregate Scheduled Principal Balance of the Group I
Mortgage
Loans in Subgroup I-1, Subgroup I-2 and Subgroup I-3, respectively
(other
than
the related PO Percentage of the principal balance of such Group
I
Mortgage Loans), the aggregate Current Principal Amount of the
related
Class or Classes of Group I Senior Certificates (other than the
Class I-PO
Certificates); provided that, for federal income tax purposes, the
Class
I-B
Certificates will each bear interest at a rate equivalent to
the
foregoing, expressed as the weighted average of the Pass-Through
Rates on
REMIC III Regular Interests I-B-4, I-B-5 and I-B-6, weighted on the
basis
of
the Uncertificated Principal Balances of each such REMIC III
Regular
Interest immediately preceding the related Distribution Date.
(4) A variable
pass-through rate equal to a per annum rate equal to the
excess,
if
any, of (i) the weighted average of 7.00%, 7.50% and 8.00% per
annum,
weighted in proportion to the results of subtracting from the
aggregate
Scheduled Principal Balance of the Group I Mortgage Loans in
Subgroup I-1,
Subgroup I-2 and Subgroup I-3, respectively (other than the related
PO
Percentage of the principal balance of such Group I Mortgage
Loans), the
aggregate Current Principal Amount of the related Class or Classes
of Group
I
Senior Certificates (other than the Class I-PO Certificates), over
(ii)
6.00% per annum; provided that, for federal income tax purposes the
Class
I-XB
Certificates will bear interest at a rate equivalent to the
foregoing,
expressed as the weighted average of the Pass-Through Rates on
REMIC III
Regular Interests II-B-1, II-B-2 and II-B-3, weighted on the basis
of the
Uncertificated Principal Balances of each such REMIC III Regular
Interest
immediately preceding the related Distribution Date, minus
6.00%.
(5) A variable
pass-through rate equal to the excess, if any, of (a) the
weighted average Net Mortgage Rate on the Group II Mortgage Loans
with Net
Mortgage Rates greater than 5.50% per annum over (b) 5.50% per
annum;
provided that, for federal income tax purposes the Class II-X
Certificates
will
not have a Pass-Through Rate but will be entitled to receive 100%
of
the
interest payable with respect to REMIC II Regular Interest
II-X.
(d) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the
maturity date for
the Group I Mortgage Loan with the latest maturity date in the
Trust Fund has
been designated as the "latest possible maturity date" for the
REMIC I Regular
Interests, REMIC III Regular Interests and the Group I
Certificates, and the
Distribution Date immediately following the maturity date for the
Group II
Mortgage Loan with the latest maturity date in the Trust Fund has
been
designated as the "latest possible maturity date" for the REMIC II
Regular
Interests and the Group II Certificates.
(e) With respect to each Distribution Date, each Class of
Certificates
(other than the Class R Certificates) shall accrue interest during
the related
Interest Accrual Period. With respect to each Distribution Date and
each such
Class of Certificates, interest shall be calculated on the basis of
a 360-day
year comprised of twelve 30-day months, based upon the respective
Pass-Through
Rate set forth, or determined as provided, above and the Current
Principal
Amount (or Notional Amount in the case of the Interest Only
Certificates) of
such Class applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth
in
Exhibits A-1, A-2, A-3, A-4, A-5 or A-6, as applicable. On original
issuance,
the Certificate Registrar shall sign, countersign and shall deliver
them at the
direction of the Depositor. Pending the preparation of Definitive
Certificates
of any Class, the Certificate Registrar may sign and countersign
temporary
Certificates that are printed, lithographed or typewritten, in
authorized
denominations for Certificates of such Class, substantially of the
tenor of the
Definitive Certificates in lieu of which they are issued and with
such
appropriate insertions, omissions, substitutions and other
variations as the
officers or authorized signatories executing such Certificates may
determine, as
evidenced by their execution of such Certificates. If temporary
Certificates are
issued, the Depositor will cause Definitive Certificates to be
prepared without
unreasonable delay. After the preparation of Definitive
Certificates, the
temporary Certificates shall be exchangeable for definitive
Certificates upon
surrender of the temporary Certificates at the office of the
Certificate
Registrar, without charge to the Holder. Upon surrender for
cancellation of any
one or more temporary Certificates, the Certificate Registrar shall
sign and
countersign and deliver in exchange therefor a like aggregate
principal amount,
in authorized denominations for such Class, of Definitive
Certificates of the
same Class. Until so exchanged, such temporary Certificates shall
in all
respects be entitled to the same benefits as Definitive
Certificates.
(g) Each Class of Book-Entry Certificates will be registered as
a
single Certificate of such Class held by a nominee of the
Depository or the DTC
Custodian, and beneficial interests will be held by investors
through the
book-entry facilities of the Depository in minimum denominations of
in the case
of the Certificates (other than the Residual Certificates and the
Class II-A-2
Certificates), $100,000, and for the Class II-A-2 Certificates,
$1,000, and in
each case increments of $1.00 in excess thereof, except that one
Certificate of
each such Class may be issued in a different amount so that the sum
of the
denominations of all outstanding Certificates of such Class shall
equal the
Current Principal Amount of such Class on the Closing Date. On the
Closing Date,
the Certificate Registrar shall execute and countersign Physical
Certificates
all in an aggregate principal amount that shall equal the Current
Principal
Amount of such Class on the Closing Date. The Class I-R-1, Class
I-R-2 and Class
I-R-3 Certificates shall each be issued in certificated
fully-registered form,
in the denomination of $50. The Class II-R-1 Certificates shall
each be issued
in certificated fully-registered form, in the denomination of $100.
Each Class
of Global Certificates, if any, shall be issued in fully registered
form in
minimum dollar denominations of $100,000 and integral multiples of
$1.00 in
excess thereof, except that one Certificate of each Class may be in
a different
denomination so that the sum of the denominations of all
outstanding
Certificates of such Class shall equal the Current Principal Amount
of such
Class on the Closing Date. On the Closing Date, the Certificate
Registrar shall
execute and countersign (i) in the case of each Class of the
Offered
Certificates, the Certificate in the entire Current Principal
Amount of the
respective Class and (ii) in the case of each Class of the
Non-Offered
Certificates, Individual Certificates all in an aggregate principal
amount that
shall equal the Current Principal Amount of each such respective
Class on the
Closing Date. The Certificates referred to in clauses (i) and (ii)
and if at any
time there are to be Global Certificates, the Global Certificates
shall be
delivered by the Depositor to the Depository or pursuant to the
Depository's
instructions, shall be delivered by the Depositor on behalf of the
Depository to
and deposited with the DTC Custodian. The Certificate Registrar
shall sign the
Certificates by facsimile or manual signature and countersign them
by manual
signature on behalf of the Certificate Registrar by one or more
authorized
signatories, each of whom shall be Responsible Officers of the
Certificate
Registrar or its agent. A Certificate bearing the manual and
facsimile
signatures of individuals who were the authorized signatories of
the Certificate
Registrar or its agent at the time of issuance shall bind the
Certificate
Registrar, notwithstanding that such individuals or any of them
have ceased to
hold such positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on
such Certificate
the manually executed countersignature of the Certificate Registrar
or its
agent, and such countersignature upon any Certificate shall be
conclusive
evidence, and the only evidence, that such Certificate has been
duly executed
and delivered hereunder. All Certificates issued on the Closing
Date shall be
dated the Closing Date. All Certificates issued thereafter shall be
dated the
date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of
each
REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each REMIC shall have a tax
year
that is a calendar year and shall report income on an accrual
basis.
(k) The Trustee on behalf of the Trust shall cause each REMIC to
timely
elect to be treated as a REMIC under Section 860D of the Code.
Any
inconsistencies or ambiguities in this Agreement or in the
administration of any
Trust established hereby shall be resolved in a manner that
preserves the
validity of such elections.
(l) The following legend shall be placed on the Residual
Certificates,
whether upon original issuance or upon issuance of any other
Certificate of any
such Class in exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE
CERTIFICATE REGISTRAR WITH AN OPINION OF COUNSEL ADDRESSED TO
THE DEPOSITOR, TRUSTEE, CERTIFICATE REGISTRAR, MASTER
SERVICER AND SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY
RELY THAT IS SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF
CERTIFICATES ON BEHALF OF SUCH PERSON WILL NOT RESULT IN OR
CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION, IS PERMISSIBLE
UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR,
CERTIFICATE REGISTRAR OR THE TRUSTEE.
The following legend shall be placed upon the Class I-B-4, Class
I-B-5, Class
I-B-6, Class II-B-4, Class II-B-5 and Class II-B-6 Certificates,
whether upon
original issuance or upon issuance of any other Certificate of any
such Class in
exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR
ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS
AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED,
UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED
TRANSFER AND
HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND
OPERATION OF THE
TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS
NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION
EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION
("PTE") 84-14,
PTE 91-38, PTE 90-1, PTE 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE
RISE TO ANY
ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE
SECURITIES
ADMINISTRATOR, THE MASTER SERVICER, CERTIFICATE REGISTRAR OR THE
TRUSTEE, WHICH
WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR A GLOBAL
CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE
AGREEMENT IS
PROVIDED.
Section 5.02 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Certificate Registrar shall maintain at its Corporate
Trust
Office a separate Certificate Register for Certificates in which,
subject to
such reasonable regulations as it may prescribe, the Certificate
Registrar shall
provide for the registration of the related Certificates and of
transfers and
exchanges of the related Certificates as herein provided.
(b) Subject to Subsection 5.01(a) and, in the case of any
Global
Certificate or Physical Certificate upon the satisfaction of the
conditions set
forth below, upon surrender for registration of transfer of any
Certificate at
any office or agency of the Certificate Registrar maintained for
such purpose,
the Certificate Registrar shall sign, countersign and shall
deliver, in the name
of the designated transferee or transferees, a new Certificate of a
like Class
and aggregate Fractional Undivided Interest, but bearing a
different number.
(c) By acceptance of an Individual Certificate, whether upon
original
issuance or subsequent transfer, each holder of such a Certificate
acknowledges
the restrictions on the transfer of such Certificate set forth in
the Securities
Legend and agrees that it will transfer such a Certificate only as
provided
herein. In addition to the provisions of Subsection 5.02(h), the
following
restrictions shall apply with respect to the transfer and
registration of
transfer of an Individual Certificate to a transferee that takes
delivery in the
form of an Individual Certificate:
(i) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made
to a
transferee who has provided the Certificate Registrar with a Rule
144A
Certificate or comparable evidence as to its QIB status.
(ii) The Certificate Registrar shall register the transfer of
any Individual Certificate if (x) the transferor has advised the
Certificate
Registrar in writing that the Certificate is being transferred to
an
Institutional Accredited Investor; and (y) prior to the transfer
the transferee
furnishes to the Certificate Registrar an Investment Letter (and
the Certificate
Registrar shall be fully protected in so doing), provided that, if
based upon an
Opinion of Counsel addressed to the Certificate Registrar to the
effect that the
delivery of (x) and (y) above are not sufficient to confirm that
the proposed
transfer is being made pursuant to an exemption from, or in a
transaction not
subject to, the registration requirements of the Securities Act and
other
applicable laws, the Certificate Registrar shall as a condition of
the
registration of any such transfer require the transferor to furnish
such other
certifications, legal opinions or other information prior to
registering the
transfer of an Individual Certificate as shall be set forth in such
Opinion of
Counsel.
(d) Subject to Subsection 5.02(h), so long as a Global Certificate
of
such Class is outstanding and is held by or on behalf of the
Depository,
transfers of beneficial interests in such Global Certificate, or
transfers by
holders of Individual Certificates of such Class to transferees
that take
delivery in the form of beneficial interests in the Global
Certificate, may be
made only in accordance with this Subsection 5.02(d) and in
accordance with the
rules of the Depository:
(i) In the case of a beneficial interest in the Global
Certificate being transferred to an Institutional Accredited
Investor, such
transferee shall be required to take delivery in the form of an
Individual
Certificate or Certificates and the Certificate Registrar shall
register such
transfer only upon compliance with the provisions of Subsection
5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global
Certificates being transferred to a transferee that takes delivery
in the form
of an Individual Certificate or Certificates of such Class, except
as set forth
in clause (i) above, the Certificate Registrar shall register such
transfer only
upon compliance with the provisions of Subsection 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class
being transferred to a transferee that takes delivery in the form
of a
beneficial interest in a Global Certificate of such Class, the
Certificate
Registrar shall register such transfer if the transferee has
provided the
Certificate Registrar with a Rule 144A Certificate or comparable
evidence as to
its QIB status.
(iv) No restrictions shall apply with respect to the transfer
or registration of transfer of a beneficial interest in the Global
Certificate
of a Class to a transferee that takes delivery in the form of a
beneficial
interest in the Global Certificate of such Class; provided that
each such
transferee shall be deemed to have made such representations and
warranties
contained in the Rule 144A Certificate as are sufficient to
establish that it is
a QIB.
(e) Subject to Subsection 5.02(h), an exchange of a beneficial
interest
in a Global Certificate of a Class for an Individual Certificate or
Certificates
of such Class, an exchange of an Individual Certificate or
Certificates of a
Class for a beneficial interest in the Global Certificate of such
Class and an
exchange of an Individual Certificate or Certificates of a Class
for another
Individual Certificate or Certificates of such Class (in each case,
whether or
not such exchange is made in anticipation of subsequent transfer,
and, in the
case of the Global Certificate of such Class, so long as such
Certificate is
outstanding and is held by or on behalf of the Depository) may be
made only in
accordance with this Subsection 5.02(e) and in accordance with the
rules of the
Depository:
(i) A holder of a beneficial interest in a Global Certificate
of a Class may at any time exchange such beneficial interest for an
Individual
Certificate or Certificates of such Class.
(ii) A holder of an Individual Certificate or Certificates of
a Class may exchange such Certificate or Certificates for a
beneficial interest
in the Global Certificate of such Class if such holder furnishes to
the
Certificate Registrar a Rule 144A Certificate or comparable
evidence as to its
QIB status.
(iii) A holder of an Individual Certificate of a Class may
exchange such Certificate for an equal aggregate principal amount
of Individual
Certificates of such Class in different authorized denominations
without any
certification.
(f) (i) Upon acceptance for exchange or transfer of an
Individual
Certificate of a Class for a beneficial interest in a Global
Certificate of such
Class as provided herein, the Certificate Registrar shall cancel
such Individual
Certificate and shall (or shall request the Depository to) endorse
on the
schedule affixed to the applicable Global Certificate (or on a
continuation of
such schedule affixed to the Global Certificate and made a part
thereof) or
otherwise make in its books and records an appropriate notation
evidencing the
date of such exchange or transfer and an increase in the
certificate balance of
the Global Certificate equal to the certificate balance of such
Individual
Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial
interest in a Global Certificate of a Class for an Individual
Certificate of
such Class as provided herein, the Certificate Registrar shall (or
shall request
the Depository to) endorse on the schedule affixed to such Global
Certificate
(or on a continuation of such schedule affixed to such Global
Certificate and
made a part thereof) or otherwise make in its books and records an
appropriate
notation evidencing the date of such exchange or transfer and a
decrease in the
certificate balance of such Global Certificate equal to the
certificate balance
of such Individual Certificate issued in exchange therefor or upon
transfer
thereof.
(g) The Securities Legend shall be placed on any Individual
Certificate
issued in exchange for or upon transfer of another Individual
Certificate or of
a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in
this Section 5.02, the holder of any Individual Certificate may
transfer or
exchange the same in whole or in part (in an initial certificate
balance equal
to the minimum authorized denomination set forth in Section 5.01(g)
above or any
integral multiple of $1.00 in excess thereof) by surrendering such
Certificate
at the Corporate Trust Office, or at the office of any transfer
agent, together
with an executed instrument of assignment and transfer satisfactory
in form and
substance to the Certificate Registrar in the case of transfer and
a written
request for exchange in the case of exchange. The holder of a
beneficial
interest in a Global Certificate may, subject to the rules and
procedures of the
Depository, cause the Depository (or its nominee) to notify the
Certificate
Registrar in writing of a request for transfer or exchange of such
beneficial
interest for an Individual Certificate or Certificates. Following a
proper
request for transfer or exchange, the Certificate Registrar shall,
within five
Business Days of such request made at the Corporate Trust Office,
sign,
countersign and deliver at the Corporate Trust Office, to the
transferee (in the
case of transfer) or holder (in the case of exchange) or send by
first class
mail at the risk of the transferee (in the case of transfer) or
holder (in the
case of exchange) to such address as the transferee or holder, as
applicable,
may request, an Individual Certificate or Certificates, as the case
may require,
for a like aggregate Fractional Undivided Interest and in such
authorized
denomination or denominations as may be requested. The presentation
for transfer
or exchange of any Individual Certificate shall not be valid unless
made at the
Corporate Trust Office by the registered holder in person, or by a
duly
authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may
be
exchanged for other Certificates of authorized denominations of a
like Class and
aggregate Fractional Undivided Interest, upon surrender of the
Certificates to
be exchanged at the Corporate Trust Office; provided, however, that
no
Certificate may be exchanged for new Certificates unless the
original Fractional
Undivided Interest represented by each such new Certificate (i) is
at least
equal to the minimum authorized denomination or (ii) is acceptable
to the
Depositor as indicated to the Certificate Registrar in writing.
Whenever any
Certificates are so surrendered for exchange, the Certificate
Registrar shall
sign and countersign and the Certificate Registrar shall deliver
the
Certificates which the Certificateholder making the exchange is
entitled to
receive.
(j) If the Certificate Registrar so requires, every Certificate
presented or surrendered for transfer or exchange shall be duly
endorsed by, or
be accompanied by a written instrument of transfer, with a
signature guarantee,
in form satisfactory to the Certificate Registrar, duly executed by
the holder
thereof or his or her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange
of
Certificates, but the Certificate Registrar may require payment of
a sum
sufficient to cover any tax or governmental charge that may be
imposed in
connection with any transfer or exchange of Certificates.
(l) The Certificate Registrar shall cancel all Certificates
surrendered
for transfer or exchange but shall retain such Certificates in
accordance with
its standard retention policy or for such further time as is
required by the
record retention requirements of the Securities Exchange Act of
1934, as
amended, and thereafter may destroy such Certificates.
Section 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate
Registrar, or the Certificate Registrar receives evidence to its
satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there
is delivered
to the Certificate Registrar such security or indemnity as it may
require to
save it harmless, and (iii) the Certificate Registrar has not
received notice
that such Certificate has been acquired by a third Person, the
Certificate
Registrar shall sign, countersign and deliver, in exchange for or
in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like
tenor and Fractional Undivided Interest but in each case bearing a
different
number. The mutilated, destroyed, lost or stolen Certificate shall
thereupon be
canceled of record by the Certificate Registrar and shall be of no
further
effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section
5.03,
the Certificate Registrar may require the payment of a sum
sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and
any other expenses (including the fees and expenses of the
Certificate
Registrar) connected therewith. Any duplicate Certificate issued
pursuant to
this Section 5.03 shall constitute complete and indefeasible
evidence of
ownership in the Trust Fund, as if originally issued, whether or
not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 5.04 PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Paying Agent, the Certificate
Registrar or the
Trustee and any agent of the Depositor, the Paying Agent, the
Certificate
Registrar or the Trustee may treat the Person in whose name any
Certificate is
registered as the owner of such Certificate for the purpose of
receiving
distributions pursuant to Section 6.01 and for all other purposes
whatsoever.
None of the Depositor, the Paying Agent, the Certificate Registrar
or the
Trustee or any agent of the Depositor, the Paying Agent, the
Certificate
Registrar or the Trustee shall be affected by notice to the
contrary. No
Certificate shall be deemed duly presented for a transfer effective
on any
Record Date unless the Certificate to be transferred is presented
no later than
the close of business on the third Business Day preceding such
Record Date.
Section 5.05 TRANSFER RESTRICTIONS ON RESIDUAL CERTIFICATES.
(a) Residual Certificates, or interests therein, may not be
transferred
without the prior express written consent of the Tax Matters Person
and the
Depositor. As a prerequisite to such consent, (1) the proposed
transferee must
provide the Tax Matters Person, the Depositor, the Certificate
Registrar and the
Trustee with an affidavit that the proposed transferee is a
Permitted Transferee
(and an affidavit that it is a United States Person), and (2) the
proposed
transferor must provide the Tax Matters Person, the Depositor, the
Certificate
Registrar and the Trustee with a certificate to the effect that it
has no
knowledge that the statements made by the proposed transferee in
any such
affidavit are false, each as provided in Subsection 5.05(b).
(b) No transfer, sale or other disposition of a Residual
Certificate
(including a beneficial interest therein) may be made unless, prior
to the
transfer, sale or other disposition of a Residual Certificate, the
proposed
transferee (including the initial purchasers thereof) delivers to
the Tax
Matters Person, the Trustee, the Certificate Registrar and the
Depositor an
affidavit in the form attached hereto as Exhibit E stating, among
other things,
that as of the date of such transfer (i) such transferee is a
Permitted
Transferee and that (ii) such transferee is not acquiring such
Residual
Certificate for the account of any Person who is not a Permitted
Transferee, and
(2) the proposed transferor delivers to the Tax Matters Person, the
Trustee, the
Certificate Registrar and the Depositor a certificate to the effect
that it has
no knowledge that the statements made by the proposed transferee in
any such
affidavit are false. The Tax Matters Person shall not consent to a
transfer of a
Residual Certificate if it has actual knowledge that any statement
made in the
affidavit issued pursuant to the preceding sentence is not true.
Notwithstanding
any transfer, sale or other disposition of a Residual Certificate
to any Person
who is not a Permitted Transferee or a United States Person, such
transfer, sale
or other disposition shall be deemed to be of no legal force or
effect
whatsoever and such Person shall not be deemed to be a Holder of a
Residual
Certificate for any purpose hereunder, including, but not limited
to, the
receipt of distributions thereon. If any purported transfer shall
be in
violation of the provisions of this Subsection 5.05(b), then the
prior Holder
thereof shall, upon discovery that the transfer of such Residual
Certificate was
not in fact permitted by this Subsection 5.05(b), be restored to
all rights and
obligations as a Holder thereof retroactive to the date of the
purported
transfer. None of the Trustee, the Certificate Registrar, the Tax
Matters Person
or the Depositor shall be under any liability to any Person for any
registration
or transfer of a Residual Certificate that is not permitted by this
Subsection
5.05(b) or for making payments due on such Residual Certificate to
the purported
Holder thereof or taking any other action with respect to such
purported Holder
under the provisions of this Agreement so long as the written
affidavit referred
to above was received with respect to such transfer, and the Tax
Matters Person,
the Trustee, the Certificate Registrar and the Depositor, as
applicable, had no
knowledge that it was untrue. The prior Holder shall be entitled to
recover from
any purported Holder of a Residual Certificate that was in fact not
a Permitted
Transferee or a United States Person under this Subsection 5.05(b)
at the time
it became a Holder all payments made on such Residual Certificate.
Each Holder
of a Residual Certificate, by acceptance thereof, shall be deemed
for all
purposes to have consented to the provisions of this Subsection
5.05(b) and to
any amendment of this Agreement deemed necessary (whether as a
result of new
legislation or otherwise) by counsel of the Tax Matters Person or
the Depositor
to ensure that the Residual Certificates are not transferred to any
Person who
is not a Permitted Transferee or a United States Person and that
any transfer of
such Residual Certificates will not cause the imposition of a tax
upon the Trust
or cause any REMIC to fail to qualify as a REMIC.
(c) The Residual Certificates (including a beneficial interest
therein)
may not be purchased by or transferred to any Person who is not a
United States
Person.
(d) By accepting a Residual Certificate, the purchaser thereof
agrees
to be a Tax Matters Person, and appoints the Securities
Administrator to act as
its agent with respect to all matters concerning the tax
obligations of the
Trust.
Section 5.06 RESTRICTIONS ON TRANSFERABILITY OF NON-OFFERED
CERTIFICATES.
(a) No offer, sale, transfer or other disposition (including
pledge) of
any Non-Offered Certificate shall be made by any Holder thereof
unless
registered under the Securities Act, or an exemption from the
registration
requirements of the Securities Act and any applicable state
securities or "Blue
Sky" laws is available and the prospective transferee (other than
the Depositor)
of such Certificate signs and delivers to the Certificate Registrar
an
Investment Letter, if the transferee is an Institutional Accredited
Investor, in
the form set forth as Exhibit F-l hereto, or a Rule 144A
Certificate, if the
transferee is a QIB, in the form set forth as Exhibit F-2
hereto.
Notwithstanding the provisions of the immediately preceding
sentence, no
restrictions shall apply with respect to the transfer or
registration of
transfer of a beneficial interest in any Non-Offered Certificate
that is a
Global Certificate of a Class to a transferee that takes delivery
in the form of
a beneficial interest in the Global Certificate of such Class
provided that each
such transferee shall be deemed to have made such representations
and warranties
contained in the Rule 144A Certificate as are sufficient to
establish that it is
a QIB. In the case of a proposed transfer of any Certificate to a
transferee
other than a QIB, the Certificate Registrar may require an Opinion
of Counsel
addressed to the Certificate Registrar that such transaction is
exempt from the
registration requirements of the Securities Act. The cost of such
opinion shall
not be an expense of the Certificate Registrar or the Trust
Fund.
(b) The Non-Offered Certificates shall each bear a Securities
Legend.
Section 5.07 ERISA RESTRICTIONS.
(a) Subject to the provisions of subsection (b), no Residual
Certificates or Non-Offered Certificates may be acquired directly
or indirectly
by, or on behalf of, an employee benefit plan or other retirement
arrangement
which is subject to Title I of ERISA or Section 4975 of the Code,
unless the
proposed transferee provides either (i) the Certificate Registrar,
with an
Opinion of Counsel addressed to the Depositor, the Trustee, the
Certificate
Registrar, the Master Servicer and the Securities Administrator
(upon which they
may rely) which is satisfactory to the Certificate Registrar, which
opinion will
not be at the expense of the Depositor, the Trustee, the
Certificate Registrar,
the Master Servicer or the Securities Administrator, that the
purchase of such
Certificates by or on behalf of such Plan is permissible under
applicable law,
will not constitute or result in a nonexempt prohibited transaction
under ERISA
or Section 4975 of the Code and will not subject the Depositor, the
Master
Servicer, the Certificate Registrar, the Securities Administrator
or the Trustee
to any obligation in addition to those undertaken in the Agreement
or (ii) in
the case of the Non-Offered Certificates, a representation or
certification to
the Certificate Registrar (upon which the Trustee, the Certificate
Registrar and
the other parties hereto are authorized to rely) to the effect that
the proposed
transfer and holding of such a Certificate and the servicing,
management and
operation of the Trust: (I) will not result in a prohibited
transaction under
Section 406 of ERISA or Section 4975 of the Code which is not
covered under an
individual or class prohibited transaction exemption including but
not limited
to Department of Labor Prohibited Transaction Exemption ("PTE")
84-14 (Class
Exemption for Plan Asset Transactions Determined by Independent
Qualified
Professional Asset Managers); PTE 91-38 (Class Exemption for
Certain
Transactions Involving Bank Collective Investment Funds); PTE 90-1
(Class
Exemption for Certain Transactions Involving Insurance Company
Pooled Separate
Accounts), PTE 95-60 (Class Exemption for Certain Transactions
Involving
Insurance Company General Accounts), and PTCE 96-23 (Class
Exemption for Plan
Asset Transactions Determined by In-House Asset Managers and (II)
will not
subject the Depositor, the Securities Administrator, the
Certificate Registrar,
the Master Servicer or the Trustee to any obligation in addition to
those
undertaken in the Agreement.
(b) Any Person acquiring an interest in a Global Certificate which
is a
Non-Offered Certificate, by acquisition of such Certificate, shall
be deemed to
have represented to the Certificate Registrar that in the case of
the
Non-Offered Certificates, either: (i) it is not acquiring an
interest in such
Certificate directly or indirectly by, or on behalf of, an employee
benefit plan
or other retirement arrangement which is subject to Title I of
ERISA or Section
4975 of the Code, or (ii) the transfer and holding of an interest
in such
Certificate to that Person and the subsequent servicing, management
and
operation of the Trust and its assets: (I) will not result in any
prohibited
transaction which is not covered under an individual or class
prohibited
transaction exemption, including, but not limited to, PTE 84-14,
PTE 91-38, PTE
90-1, PTE 95-60 or PTE 96-23 and (II) will not subject the
Depositor, the
Securities Administrator, the Certificate Registrar, the Master
Servicer or the
Trustee to any obligation in addition to those undertaken in the
Agreement.
(c) Each beneficial owner of a Class I-B-1, Class I-B-2, Class
I-B-3,
Class II-B-1, Class II-B-2 or Class II-B-3 Certificate or any
interest therein
shall be deemed to have represented, by virtue of its acquisition
or holding of
that certificate or interest therein, that either (i) it is not a
Plan or
investing with "Plan Assets", (ii) it has acquired and is holding
such
certificate in reliance on Prohibited Transaction Exemption 90-30,
as amended
from time to time (the "Exemption"), and that it understands that
there are
certain conditions to the availability of the Exemption, including
that the
certificate must be rated, at the time of purchase, not lower than
"BBB-" (or
its equivalent) by S&P, Fitch or Moody's Investors Service,
Inc., and the
certificate is so rated or (iii) (1) it is an insurance company,
(2) the source
of funds used to acquire or hold the certificate or interest
therein is an
"insurance company general account," as such term is defined in
Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions
in Sections I
and III of PTCE 95-60 have been satisfied.
(d) Neither the Trustee, the Certificate Registrar, the Master
Servicer
nor the Securities Administrator will be required to monitor,
determine or
inquire as to compliance with the transfer restrictions in this
Agreement with
respect to the Book-Entry Certificates. Any attempted or purported
transfer of
any Certificate in violation of the provisions of this Agreement
shall be void
ab initio and such Certificate shall be considered to have been
held
continuously by the prior permitted Certificateholder. Any
transferor of any
Certificate in violation of such provisions, shall indemnify and
hold harmless
the Trustee, the Certificate Registrar, the Securities
Administrator and the
Master Servicer from and against any and all liabilities, claims,
costs or
expenses incurred by the Trustee, the Certificate Registrar, the
Securities
Administrator or the Master Servicer as a result of such attempted
or purported
transfer. Neither the Trustee nor the Certificate Registrar shall
be liable for
transfer of any such Book-Entry Certificates in or through
book-entry facilities
of any Depository or between or among Depository Participants or
Certificate
Owners made in violation of the transfer restrictions set forth
herein.
Section 5.08 RULE 144A INFORMATION.
For so long as any Non-Offered Certificates are outstanding and
are
"restricted securities" within the meaning of Rule 144(a)(3) of the
Securities
Act, (1) the Depositor will provide or cause to be provided to any
holder of
such Non-Offered Certificates and any prospective purchaser thereof
designated
by such a holder, upon the request of such holder or prospective
purchaser, the
information required to be provided to such holder or prospective
purchaser by
Rule 144A(d)(4) under the Securities Act; and (2) the Depositor
shall update
such information from time to time in order to prevent such
information from
becoming false and misleading and will take such other actions as
are necessary
to ensure that the safe harbor exemption from the registration
requirements of
the Securities Act under Rule 144A is and will be available for
resales of such
Certificates conducted in accordance with Rule 144A.
Section 5.09 APPOINTMENT OF PAYING AGENT AND CERTIFICATE
REGISTRAR.
Wells Fargo Bank, National Association, as Securities
Administrator,
shall act as the initial Paying Agent and Certificate Registrar for
so long as
it is also the Master Servicer. Each of the Paying Agent and the
Certificate
Registrar may resign upon thirty (30) days' prior written notice to
the Trustee;
provided that no such resignation shall be effective until the
appointment of a
successor paying agent or certificate registrar. In the event the
Paying Agent
and/or the Certificate Registrar resigns or is removed by the
Trustee for cause,
the Trustee may appoint a successor paying agent or certificate
registrar, as
applicable. The Trustee shall cause such successor paying agent, if
other than
the Trustee or the Master Servicer or the Securities Administrator,
to execute
and deliver to the Trustee an instrument in which such paying agent
shall agree
with the Trustee that such paying agent will hold all sums held by
it for the
payment to Certificateholders in trust for the benefit of the
Certificateholders
entitled thereto until such sums have been paid to the
Certificateholders.
<PAGE>
ARTICLE VI
Payments to Certificateholders
Section 6.01 DISTRIBUTIONS ON THE CERTIFICATES.
(a) Interest and principal (as applicable) on the Certificates
(other
than the Residual Certificates) will be distributed by the Paying
Agent monthly
on each Distribution Date based on the Certificates Distribution
Report for such
Distribution Date furnished by the Securities Administrator
pursuant to 6.05
hereof, commencing in January 2006, in an amount equal to the
related Available
Funds on deposit in the Distribution Account for such Distribution
Date. In
addition, on the Distribution Date occurring in January 2006, the
Class I-R
Deposit will be distributed to the Holders of the Class I-R
Certificates, pro
rata, and the Class II-R Deposit will be distributed to the Holders
of the Class
II-R-1 Certificates. On each Distribution Date, the related
Available Funds on
deposit in the Distribution Account shall be distributed as
follows:
(I) DISTRIBUTIONS ON THE GROUP I CERTIFICATES:
On each Distribution Date, the Group I Available Funds will be
distributed as follows:
(i) on each Distribution Date, the Group I Available Funds
will be distributed to the Group I Senior Certificates as
follows:
FIRST, to the Group I Senior Certificates (other than the
Class I-PO Certificates), on a pro rata basis, the Accrued
Certificate
Interest on such Classes for such Distribution Date;
SECOND, to the Group I Senior Certificates (other than the
Class I-PO Certificates), on a pro rata basis, any Accrued
Certificate
Interest thereon remaining undistributed from previous
Distribution
Dates, to the extent of remaining Group I Available Funds;
THIRD, concurrently as follows:
(I) to the
extent of the remaining Group I Available
Funds related to Subgroup I-1, to the Class I-A-1
Certificates, as principal, the Subgroup I-1
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero;
(II)
to the extent of the remaining Group I Available
Funds related to Subgroup I-2, to the Class I-A-2
Certificates, as principal, the Subgroup I-2
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero; and
(III) to
the extent of the remaining Group I Available
Funds related to Subgroup I-3, to the Class I-A-3
Certificates, as principal, the Subgroup I-3
Principal Distribution Amount, in the order described
in this Agreement, in reduction of the Current
Principal Amount thereof, until the Current Principal
Amount thereof has been reduced to zero;
FOURTH, to the Class I-PO Certificates, the Class I-PO
Certificate Principal Distribution Amount for such Distribution
Date to
the extent of the remaining Group I Available Funds, until the
Current
Principal Amount thereof has been reduced to zero; and
FIFTH, to the Class I-PO Certificates, the Class I-PO
Certificate Deferred Amount, provided that, (i) on any
Distribution
Date, distributions pursuant to this priority FIFTH shall not
exceed
the excess, if any, of (x) Group I Available Funds remaining
after
giving effect to distributions pursuant to priorities FIRST
through
FOURTH above over (y) the sum of the amount of Accrued
Certificate
Interest for such Distribution Date and Accrued Certificate
Interest
remaining undistributed from previous Distribution Dates on all
Classes
of Group I Subordinate Certificates then outstanding, (ii) such
distributions shall not reduce the Current Principal Amount of
the
Class I-PO Certificates, and (iii) no distribution will be made
in
respect of the Class I-PO Certificate Deferred Amount on or after
the
Group I Cross-Over Date.
(ii) Except as described in paragraphs (iii) and (iv) below,
on each Distribution Date prior to the Group I Cross-Over Date, an
amount equal
to the remaining Group I Available Funds after the distributions in
clause (i)
above shall be distributed sequentially in the following order, to
the Class
I-XB, I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and
Class I-B-6
Certificates, in each case up to an amount equal to and in the
following order:
(a) the Accrued Certificate Interest thereon for such Distribution
Date, (b) any
Accrued Certificate Interest thereon remaining undistributed from
previous
Distribution Dates and (c) such Class's Group I Allocable Share for
such
Distribution Date (other than the Class I-XB Certificates), in each
case, to the
extent of the remaining Group I Available Funds.
(iii) On each Distribution Date prior to the Group I
Cross-Over Date but after the reduction of the Current Principal
Amounts of all
of the Group I Senior Certificates related to a Subgroup to zero,
the remaining
Class or Classes of Group I Senior Certificates in the remaining
Subgroups
(other than the Class I-X Certificates and Class I-PO Certificates)
will be
entitled to receive in reduction of their Current Principal
Amounts, pro rata
based upon their Current Principal Amounts immediately prior to
such
Distribution Date, in addition to any Principal Prepayments related
to such
remaining Group I Senior Certificates' respective Subgroup
allocated to such
Group I Senior Certificates, 100% of the Principal Prepayments on
any Mortgage
Loan in the Subgroup or Subgroups relating to the Class or Classes
of Group I
Senior Certificates of the fully repaid Subgroup; provided,
however, if (A) the
weighted average of the Subgroup Subordinate Percentages on such
Distribution
Date equals or exceeds two times the initial weighted average of
the Subgroup
Subordinate Percentages and (B) the aggregate Scheduled Principal
Balance of the
Mortgage Loans in Loan Group I delinquent 60 days or more
(including for this
purpose any such Mortgage Loans in foreclosure and bankruptcy and
Mortgage Loans
with respect to which the related mortgaged property has been
acquired by the
trust), averaged over the last six months, as a percentage of the
aggregate
Current Principal Amount of the Group I Subordinate Certificates
does not exceed
50%, then the additional allocation of Principal Prepayments to the
Subgroup I-1
Certificates, Subgroup I-2 Certificates and Subgroup I-3
Certificates in
accordance with this paragraph (iii) will not be made and 100% of
the Principal
Prepayments on any Mortgage Loan in Loan Group I relating to the
fully repaid
Class or Classes of Group I Senior Certificates will be allocated
to the Group I
Subordinate Certificates.
(iv) If on any Distribution Date on which the aggregate
Current Principal Amount of the Subgroup I-1 Certificates, Subgroup
I-2
Certificates and Subgroup I-3 Certificates would be greater than
the aggregate
Scheduled Principal Balance of the Mortgage Loans in its related
Subgroup and
any Group I Subordinate Certificates are still outstanding, in each
case, after
giving effect to distributions to be made on such Distribution
Date, (i) 100% of
amounts otherwise allocable to the Group I Subordinate Certificates
in respect
of principal will be distributed to the Subgroup I-1 Certificates,
Subgroup I-2
Certificates and Subgroup I-3 Certificates (other than the Class
I-X
Certificates and Class I-PO Certificates), pro rata, based upon
their Current
Principal Amounts immediately prior to such Distribution Date, in
reduction of
the Current Principal Amounts thereof, until the aggregate Current
Principal
Amount of the Subgroup I-1 Certificates, Subgroup I-2 Certificates
and Subgroup
I-3 Certificates, as applicable, is equal to the aggregate
Scheduled Principal
Balance of the Mortgage Loans in its related Subgroup, and (ii) the
Accrued
Certificate Interest otherwise allocable to the Group I Subordinate
Certificates
on such Distribution Date will be reduced, if necessary, and
distributed to such
class or classes of Group I Senior Certificates in an amount equal
to the
Accrued Certificate Interest for such Distribution Date on the
excess of (x) the
aggregate Current Principal Amount of the Subgroup I-1
Certificates, Subgroup
I-2 Certificates and Subgroup I-3 Certificates (other than the
Class I-X, Class
I-XB and Class I-PO Certificates), as applicable, over (y) the
aggregate
Scheduled Principal Balance of the Mortgage Loans in the related
Subgroup. Any
such reduction in the Accrued Certificate Interest on the Group I
Subordinate
Certificates will be allocated in reverse order of the Group I
Subordinate
Certificates' numerical designations, commencing with the Class
I-B-6
Certificates.
(v) If, after distributions have been made pursuant to
priorities FIRST and SECOND of clause (i) above on any Distribution
Date, the
remaining Group I Available Funds related to Subgroup I-1 is less
than the sum
of the Subgroup I-1 Principal Distribution Amount and Class I-PO
Certificate
Principal Distribution Amount, or the remaining Group I Available
Funds related
to Subgroup I-2 is less than the Subgroup I-2 Principal
Distribution Amount, or
the remaining Group I Available Funds related to Subgroup I-3 is
less than the
Subgroup I-3 Principal Distribution Amount, such amounts shall be
reduced, and
such remaining funds will be distributed to the related Group I
Senior
Certificates (other than the Class I-X Certificates) on the basis
of such
reduced amounts. Notwithstanding any reduction in principal
distributable to the
Class I-PO Certificates pursuant to this paragraph, the principal
balance of the
Class I-PO Certificates shall be reduced not only by principal so
distributed
but also by the Class I-PO Certificate Cash Shortfall. The Class
I-PO
Certificate Cash Shortfall for the Class I-PO Certificates with
respect to any
Distribution Date will be added to the Class I-PO Certificate
Deferred Amount.
On each Distribution Date, any Group I Available Funds remaining
after
payment of interest and principal to the Classes of Certificates
entitled
thereto, in each case as described above, will be distributed to
the Class I-R-1
Certificates; provided that, if on any Distribution Date there are
any Group I
Available Funds remaining after payment of interest and principal
to a Class or
Classes of Certificates entitled thereto, such amounts will be
distributed to
the other Classes of Group I Senior Certificates, pro rata, based
upon their
Current Principal Amounts, until all amounts due to all Classes of
Group I
Senior Certificates have been paid in full, before any amounts are
distributed
to the Class I-R-1 Certificates.
(II) DISTRIBUTIONS ON THE GROUP II CERTIFICATES:
On each Distribution Date, distributions to the holders of the
Group II
Certificates will be made from the Group II Available Funds as
follows:
(i) on each Distribution Date, the Group II Available Funds
will be distributed to the Group II Senior Certificates as
follows:
FIRST, to the Group II Senior Certificates (other than the
Class II-PO Certificates), on a pro rata basis, the Accrued
Certificate
Interest on such Classes for such Distribution Date;
SECOND, to the Group II Senior Certificates (other than the
Class II-PO Certificates), on a pro rata basis, any Accrued
Certificate
Interest thereon remaining undistributed from previous
Distribution
Dates, to the extent of remaining Group II Available Funds;
THIRD, to the Class II-A-1, Class II-A-2, Class II-A-3 and
Class II-A-4 Certificates, on a pro rata basis, as principal, the
Group
II Senior Optimal Principal Amount for such Distribution Date to
the
extent of the remaining Group II Available Funds until the
Current
Principal Amount
of each such Class has been reduced to zero;
FOURTH, to the Class II-PO Certificates, the Class II-PO
Certificate Principal Distribution Amount for such Distribution
Date to
the extent of the remaining Group II Available Funds, until the
Current
Principal Amount thereof has been reduced to zero; and
FIFTH, to the Class II-PO Certificates, the Class II-PO
Certificate Deferred Amount; provided that, (i) on any
Distribution
Date, distributions pursuant to this priority FIFTH shall not
exceed
the excess, if any, of (x) Group II Available Funds remaining
after
giving effect to distributions pursuant to priorities FIRST
through
FOURTH above over (y) the sum of the amount of Accrued
Certificate
Interest for such Distribution Date and Accrued Certificate
Interest
remaining undistributed from previous Distribution Dates on all
classes
of Group II Subordinate Certificates then outstanding, (ii)
such
distributions shall not reduce the Current Principal Amount of
the
Class II-PO Certificates, and (iii) no distribution will be made
in
respect of the Class II-PO Certificate Deferred Amount on or after
the
Group II Cross-Over Date.
(ii) On each Distribution Date prior to the Group II
Cross-Over Date, an amount equal to the remaining Group II
Available Funds after
the distributions in clause (i) above will be distributed
sequentially in the
following order, to the Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4,
Class II-B-5 and Class II-B-6 Certificates, in each case up to an
amount equal
to and in the following order: (a) the Accrued Certificate Interest
thereon for
such Distribution Date, (b) any Accrued Certificate Interest
thereon remaining
undistributed from previous Distribution Dates and (c) such Class's
Group II
Allocable Share for such Distribution Date, in each case, to the
extent of the
remaining Group II Available Funds.
(iii) If, after distributions have been made pursuant to
priorities FIRST and SECOND of clause (i) above on any Distribution
Date, the
remaining Group II Available Funds are less than the Group II
Senior Optimal
Principal Amount and Class II-PO Certificate Principal Distribution
Amount, such
amounts shall be reduced, and such remaining funds will be
distributed to the
Group II Senior Certificates (other than the Class II-X
Certificates) on the
basis of such reduced amounts. Notwithstanding any reduction in
principal
distributable to the Class II-PO Certificates pursuant to this
paragraph, the
Current Principal Amount of the Class II-PO Certificates shall be
reduced not
only by principal so distributed but also by the Class II-PO
Certificate Cash
Shortfall. The Class II-PO Certificate Cash Shortfall for the Class
II-PO
Certificates with respect to any Distribution Date will be added to
the Class
II-PO Certificate Deferred Amount.
(iv) On or after the occurrence of the Group II Cross-Over
Date, all priorities relating to distributions as described above
in respect of
principal among the various classes of related Senior Certificates
(other than
the Class II-PO Certificates) will be disregarded, and the
remaining Group II
Available Funds will be distributed to such Certificates (other
than the Class
II-PO Certificates) pro rata in accordance with their respective
outstanding
Certificate Principal Balances and an amount equal to the Class
II-PO
Certificate Principal Distribution Amount will be distributed to
the Class II-PO
Certificates.
On each Distribution Date, any Group II Available Funds remaining
after
payment of interest and principal to the Classes of Certificates
entitled
thereto, in each case as described above, will be distributed to
the Class
II-R-1 Certificates; provided, that if on any Distribution Date
there are any
Group II Available Funds remaining after payment of interest and
principal to a
Class or Classes of Certificates entitled thereto, such amounts
will be
distributed to the other Class or Classes of Group II Senior
Certificates, pro
rata, based upon their Current Principal Amounts, until all amounts
due to all
Classes of Group II Senior Certificates have been paid in full,
before any
amounts are distributed to the Class II-R-1 Certificates.
(b) "Pro rata" distributions among Classes of Certificates will be
made
in proportion to the then Current Principal Amount of such
Classes.
(c) No Accrued Certificate Interest will be payable with respect to
any
Class of Certificates after the Distribution Date on which the
Current Principal
Amount or Notional Amount of such Certificate has been reduced to
zero.
(d) If on any Distribution Date the Available Funds for the
related
Senior Certificates is less than the Accrued Certificate Interest
on the related
Senior Certificates for such Distribution Date pr
