POOLING AND SERVICING AGREEMENTPooling and Servicing Agreement |
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EXHIBIT 4.1 EXECUTION VERSION
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
TABLE OF CONTENTS
Exhibit A Form of Certificates (other than Class R Certificates) Exhibit B Form of Class R Certificates Exhibit C Anti-Predatory Lending Categorization Exhibit D Mortgage Loan Schedule Exhibit E Selling And Servicing Contract Exhibit F Form of Transferor Certificate For Junior Subordinate Certificates Exhibit G Form of Transferee’s Agreement For Junior Subordinate Certificates Exhibit H Form of Additional Matter Incorporated Into The Certificates Exhibit I Transferor Certificate Exhibit J Transferee Affidavit And Agreement Exhibit K [Reserved] Exhibit L Form of Investment Letter Exhibit M Form of Trustee’s Certification Pursuant to Section 2.07 Exhibit N Officer’s Certificate With Respect to ERISA Matters Pursuant to Section 5.01(d) Exhibit O Officer’s Certificate With Respect to ERISA Matters Pursuant to Section 5.01(g)
This Pooling and Servicing Agreement, dated and effective as of April 1, 2005 (this “ Agreement ”), is executed by and among Washington Mutual Mortgage Securities Corp., as depositor and as Master Servicer (the “ Company ”), Deutsche Bank National Trust Company, a national banking association with a corporate trust office at 1761 East St. Andrew Place, Santa Ana, CA 92705, as Trustee (the “ Trustee ”), and Deutsche Bank Trust Company Delaware, as Delaware Trustee (the “ Delaware Trustee ”). Capitalized terms used in this Agreement and not otherwise defined have the meanings ascribed to such terms in Article I hereof. PRELIMINARY STATEMENT The Company at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by it to the Trust. On the Closing Date, the Company will acquire the REMIC I Regular Interests and the Class R-1 Residual Interest from the Trust as consideration for its transfer to the Trust of the Mortgage Loans and certain other assets and will be the owner of the REMIC I Regular Interests and the Class R-1 Residual Interest. Thereafter on the Closing Date, the Company will acquire the REMIC II Regular Interests and the Class R-2 Residual Interest from the Trust as consideration for its transfer to the Trust of the REMIC I Regular Interests and will be the owner of the REMIC II Regular Interests. Thereafter on the Closing Date, the Company will acquire the Certificates (other than the Class R Certificates) and the Class R-3 Residual Interest from the Trust as consideration for its transfer to the Trust of the REMIC II Regular Interests and will be the owner of the Certificates. The Company has duly authorized the execution and delivery of this Agreement to provide for (i) the conveyance to the Trust of the Mortgage Loans and certain other assets, (ii) the issuance to the Company of the REMIC I Regular Interests and the Class R-1 Residual Interest representing in the aggregate the entire beneficial interest in REMIC I, (iii) the conveyance to the Trust of the REMIC I Regular Interests, (iv) the issuance to the Company of the REMIC II Regular Interests and the Class R-2 Residual Interest representing in the aggregate the entire beneficial interest in REMIC II, (v) the conveyance to the Trust of the REMIC II Regular Interests and (vi) the issuance to the Company of the REMIC III Regular Interests and the Certificates, such REMIC III Regular Interests and the Class R-3 Residual Interest representing in the aggregate the entire beneficial interest in REMIC III. The Company is entering into this Agreement, and the Trustee and the Delaware Trustee are each accepting the trust created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. The Certificates issued hereunder, other than the Junior Subordinate Certificates, have been offered for sale pursuant to a Prospectus, dated April 20, 2005, and a Prospectus Supplement, dated April 20, 2005, of the Company (together, the “ Prospectus ”). The Junior Subordinate Certificates have been offered for sale pursuant to a Private Placement Memorandum, dated April 26, 2005. The Trust created hereunder is intended to be the “Trust” described in the Prospectus and the Private Placement Memorandum and the Certificates are intended to be the “Certificates” described therein. The following tables set forth the designation, type of interest, Certificate Interest Rate, initial Class Principal Balance and Final Maturity Date for the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular Interests and the Class R Residual Interests:
As provided herein, with respect to REMIC I, the Company will cause an election to be made on behalf of REMIC I to be treated for federal income tax purposes as a REMIC. The REMIC I Regular Interests will be designated regular interests in REMIC I and the Class R-1 Residual Interest will be designated the sole class of residual interest in REMIC I, for purposes of the REMIC Provisions. REMIC II Interests
As provided herein, with respect to REMIC II, the Company will cause an election to be made on behalf of REMIC II to be treated for federal income tax purposes as a REMIC. The REMIC II Regular Interests will be designated regular interests in REMIC II and the Class R-2 Residual Interest will be designated the sole class of residual interest in REMIC II, for purposes of the REMIC Provisions. REMIC III Interests
As provided herein, with respect to REMIC III, the Company will cause an election to be made on behalf of REMIC III to be treated for federal income tax purposes as a REMIC. The REMIC III Regular Interests will be designated regular interests in REMIC III and the Class R-3 Residual Interest will be designated the sole class of residual interest in REMIC III, for purposes of the REMIC Provisions. In addition, the Trust will issue the Class R Certificates, which will represent ownership of the Class R-1, Class R-2 and Class R-3 Residual Interests. In addition, the Trust will issue the Class A and Class B Certificates, each of which Class will represent ownership of (i) the Corresponding Class of REMIC III Regular Interests and (ii) the applicable rights specified in the second sentence of Section 4.05(a), and will issue the Class X Certificates, which will represent ownership of (i) the Class X-L Regular Interest and (ii) the obligations specified in the second sentence of Section 4.05(a). As of the Cut-Off Date, the Mortgage Loans have an aggregate Principal Balance of $3,167,184,178.32 and the Certificates have an Aggregate Certificate Principal Balance of $3,167,184,178.32. W I T N E S S E T H : WHEREAS, the Company is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware and has full corporate power and authority to enter into this Agreement and to undertake the obligations undertaken by it herein; WHEREAS, the Trustee is a national banking association duly organized and existing under the laws of the United States of America and has full power and authority to enter into this Agreement; WHEREAS, the Delaware Trustee is a banking corporation duly organized and existing under the laws of the State of Delaware and has full power and authority to enter into this Agreement; WHEREAS, prior to the execution and delivery hereof, the Company and the Delaware Trustee have entered into the Original Trust Agreement, and the Delaware Trustee has filed the Certificate of Trust; WHEREAS, it is the intention of the Company, the Trustee and the Delaware Trustee that the Trust created by this Agreement constitute a statutory trust under the Statutory Trust Statute, that this Agreement constitute the governing instrument of the Trust, and that this Agreement amend and restate the Original Trust Agreement; WHEREAS, the Company is the owner of the Mortgage Loans identified in the Mortgage Loan Schedule hereto having unpaid Principal Balances on the Cut-Off Date as stated therein; and WHEREAS, the Company has been duly authorized to create the Trust to (i) hold the Mortgage Loans and certain other property, (ii) issue the REMIC I Regular Interests and the Class R-1 Residual Interest, (iii) hold the REMIC I Regular Interests, (iv) issue the REMIC II Regular Interests and the Class R-2 Residual Interest, (iv) hold the REMIC II Regular Interests and (vi) issue the Certificates. NOW, THEREFORE, in order to declare the terms and conditions upon which the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular Interests, the Class R Residual Interests and the Certificates are to be issued, and in consideration of the premises and of the purchase and acceptance of the Certificates by the Holders thereof, the Company covenants and agrees with the Trustee and the Delaware Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular Interests and the Certificates, as applicable, as follows: Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings: Adjusted Cap Rate : For any Distribution Date and any Class of Class 1 A-L Regular Interests, a fraction, the numerator of which is equal to the product of (i) the amount of interest distributions accrued on the Group I Loans on the basis of the Loan Group I Weighted Average Pass-Through Rate for that Distribution Date less the Net Negative Amortization on the Group I Loans and (ii) 12, and the denominator of which is equal to the Stated Principal Balance of the Group I Loans as of the second preceding Due Date after giving effect to the payments due on the Group I Loans on that Due Date multiplied by a ratio, the numerator of which is 30 and the denominator of which is the actual number of days in the related accrual period. For any Distribution Date and any Class of Class 2 A-L Regular Interests, a fraction, the numerator of which is equal to the product of (i) the amount of interest distributions accrued on the Group II Loans on the basis of the Loan Group II Weighted Average Pass-Through Rate for that Distribution Date less the Net Negative Amortization on the Group II Loans and (ii) 12, and the denominator of which is equal to the Stated Principal Balance of the Group II Loans as of the second preceding Due Date after giving effect to the payments due on the Group II Loans on that Due Date multiplied by a ratio, the numerator of which is 30 and the denominator of which is the actual number of days in the related accrual period. For any Distribution Date and any Class of Group B-L Regular Interests, the Class B Weighted Average Pass-Through Rate, computed for this purpose by (i) reducing the Loan Group I Weighted Average Pass-Through Rate by a per annum rate equal to a fraction, the numerator of which is the Net Negative Amortization on the Group I Loans multiplied by 12, and the denominator of which is equal to the Stated Principal Balance of the Group I Loans as of the second preceding Due Date after giving effect to the payments due on the Group I Loans on that Due Date and (ii) reducing the Loan Group II Weighted Average Pass-Through Rate by a per annum rate equal to a fraction, the numerator of which is the Net Negative Amortization on the Group II Loans multiplied by 12, and the denominator of which is equal to the Stated Principal Balance of the Group II Loans as of the second preceding Due Date after giving effect to the payments due on the Group II Loans on that Due Date. For any Distribution Date and the Class X-L Regular Interest and the Certificate Interest Rate for the Class X Certificates, computed for this purpose by (i) reducing the Weighted Average Pass-Through Rate for that Distribution Date by a per annum rate equal to a fraction, the numerator of which is the Net Negative Amortization of all of the Mortgage Loans multiplied by 12, and the denominator of which is equal to the Stated Principal Balance of all of the Mortgage Loans as of the second preceding Due Date after giving effect to the payments due on the Mortgage Loans on that Due Date and (ii) substituting “Adjusted Cap Rate” for (1) “Loan Group I Weighted Average Pass-Through Rate”, (2) “Loan Group II Weighted Average Pass-Through Rate” and (3) “Class B Weighted Average Pass-Through Rate”, as applicable, in clause (a) in the calculation of Certificate Interest Rate for each of notes (2) through (11) and (13) through (19) to the table entitled “REMIC III Interests” in the Preliminary Statement hereto. Aggregate Certificate Principal Balance : At any given time, the sum of the then current Class Principal Balances of the Certificates. Appraised Value : With respect to any (i) Mortgage Loan that is not a Streamlined Mortgage Loan or ROV Mortgage Loan, the lesser of (a) the value set forth on the appraisal made in connection with the origination of such Mortgage Loan as the value of the related Mortgaged Property and (b) the purchase price paid for the Mortgaged Property, provided, however , that if such Mortgage Loan was originated in connection with the refinance of a mortgage loan, such value shall be based solely on the appraisal made in connection with the origination of such Mortgage Loan; (ii) ROV Mortgage Loan, the lesser of (a) the value set forth on the residential appraisal review made in connection with the origination of such Mortgage Loan as the value of the related Mortgaged Property and (b) the purchase price paid for the Mortgaged Property, provided, however , that if such ROV Mortgage Loan was originated in connection with the refinance of a mortgage loan, such value shall be based solely on the residential appraisal review made in connection with the origination of such ROV Mortgage Loan; and (iii) Streamlined Mortgage Loan, the value set forth in the appraisal made in connection with the origination of the mortgage loan being refinanced. Assignment of Proprietary Lease : With respect to a Cooperative Loan, the assignment or mortgage of the related Cooperative Lease from the Mortgagor to the originator of the Cooperative Loan. Authenticating Agent : Any authenticating agent appointed by the Trustee pursuant to Section 8.11. Authorized Denomination : With respect to each Class of Certificates (other than the Class X and Class R Certificates), an initial Certificate Principal Balance equal to $25,000 and multiples of $1 in excess thereof, except that one Certificate of each Class of the Junior Subordinate Certificates may be issued in an amount that is not an integral multiple of $1. With respect to the Class X Certificates, a Class Notional Amount as of the Cut-Off Date equal to $100,000 and multiples of $1 in excess thereof. With respect to the Class R Certificates, one Certificate with a Percentage Interest equal to 0.01% and one Certificate with a Percentage Interest equal to 99.99%. Bankruptcy Loss : A loss on a Mortgage Loan arising out of (i) a reduction in the Minimum Monthly Payment for such Mortgage Loan by a court of competent jurisdiction in a case under the United States Bankruptcy Code, other than any such reduction that arises out of clause (ii) of this definition of “Bankruptcy Loss,” including, without limitation, any such reduction that results in a permanent forgiveness of principal, or (ii) with respect to any Mortgage Loan, a valuation, by a court of competent jurisdiction in a case under such Bankruptcy Code, of the related Mortgaged Property in an amount less than the then outstanding Principal Balance of such Mortgage Loan. Beneficial Holder : A Person holding a beneficial interest in any Book-Entry Certificate as or through a DTC Participant or an Indirect DTC Participant or a Person holding a beneficial interest in any Definitive Certificate. Benefit Plan Opinion : With respect to any Certificate presented for registration in the name of any Person, an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Company to the effect that the purchase or holding of such Certificate is permissible under applicable law, will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, and will not subject the Trust, the Trustee, the Delaware Trustee, the Master Servicer or the Company to any obligation or liability (including obligations or liabilities under Section 406 of ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trust, the Trustee, the Delaware Trustee, the Master Servicer or the Company. Book-Entry Certificates : The Class A, Class X and Senior Subordinate Certificates, beneficial ownership and transfers of which shall be made through book entries as described in Section 5.07. BSFP : Bear Stearns Financial Products Inc. Business Day : Any day other than a Saturday or a Sunday or a day on which banking institutions in Stockton, California, Chicago, Illinois, New York, New York, Seattle, Washington or any city in which the Corporate Trust Office is located (which shall initially be Santa Ana, California) are authorized or obligated by law or executive order to be closed. Buydown Agreement : An agreement between a Person and a Mortgagor pursuant to which such Person has provided a Buydown Fund. Buydown Fund : A fund provided by the originator of a Mortgage Loan or another Person with respect to a Buydown Loan which provides an amount sufficient to subsidize regularly scheduled principal and interest payments due on such Buydown Loan for a period. Buydown Funds may be (i) funded at the par values of future payment subsidies, or (ii) funded in an amount less than the par values of future payment subsidies, and determined by discounting such par values in accordance with interest accruing on such amounts, in which event they will be deposited in an account bearing interest. Buydown Funds may be held in a separate Buydown Fund Account or may be held in a Custodial Account for P&I or a Custodial Account for Reserves and monitored by a Servicer. Buydown Fund Account : A separate account or accounts created and maintained pursuant to Section 3.02 (a) with a financial institution approved by the Master Servicer, (b) within FDIC insured accounts (or other accounts with comparable insurance coverage acceptable to the Rating Agencies) created, maintained and monitored by a Servicer or (c) in a separate non-trust account without FDIC or other insurance in an Eligible Institution (including the Trustee). Such account or accounts may be non-interest bearing or may bear interest. In the event that a Buydown Fund Account is established pursuant to clause (b) of the preceding sentence, amounts held in such Buydown Fund Account shall not exceed the level of deposit insurance coverage on such account; accordingly, more than one Buydown Fund Account may be established. Buydown Loan : A Mortgage Loan for which the Mortgage Interest Rate has been subsidized through a Buydown Fund provided at the time of origination of such Mortgage Loan. Cap Strike Rate : For any Distribution Date, the amount set forth for the Group I-A Certificates or the Group II-A Certificates, as applicable, under the heading “Strike Rate” in Schedule 1 of the Prospectus. Carry-Forward Subsequent Recoveries Amount : For any Distribution Date, the excess, if any, of (i) the Subsequent Recoveries for such Distribution Date over (ii) the amount by which the Class Principal Balance of the Class of Subordinate Certificates with the lowest priority is increased in respect of Subsequent Recoveries on such Distribution Date pursuant to the definition of “Class Principal Balance” herein. Carryover Shortfall Amount : For any Distribution Date and for any Class of Class A Certificates, the sum of: (i) the excess, if any, of (a) the amount of interest that would have accrued on the Class Principal Balance of such Class’ Corresponding Class immediately before such Distribution Date, during the No-Delay Accrual Period, at a Certificate Interest Rate equal to the lesser of (1) LIBOR plus the related margin for such Class for such Distribution Date (as specified in the applicable note to the table entitled “REMIC III Interests” in the Preliminary Statement hereto) and (2) 10.50%, over (b) the amount of interest that accrued on such Class Principal Balance, during the No-Delay Accrual Period, at the actual Certificate Interest Rate for such Class for such Distribution Date, (ii) the portion of the amount described in clause (i) above remaining unpaid from prior Distribution Dates, and (iii) one month’s interest at the Certificate Interest Rate described in clause (i)(a) above on the amount described in clause (ii) above. Carryover Shortfall Payment : For any Class of Class A Certificates for any Distribution Date, the lesser of (a) the Carryover Shortfall Amount for such Class for such Distribution Date reduced by the related Yield Maintenance Payment for such Class for such Distribution Date and (b) such Class’ pro rata share of the Interest Distribution Amount for the Class X-L Regular Interest for such Distribution Date (such pro rata share calculated based on an allocation of such Interest Distribution Amount among the Classes of Class A Certificates pro rata according to Carryover Shortfall Amount for such Distribution Date ). Certificate : Any one of the Certificates issued pursuant to this Agreement, executed by the Trustee and authenticated by or on behalf of the Trustee hereunder in substantially one of the forms set forth in Exhibit A and B hereto. The additional matter appearing in Exhibit H shall be deemed incorporated into Exhibit A as though set forth at the end of such Exhibit. Certificate Account : The separate trust account created and maintained with the Trustee, the Investment Depository or any other bank or trust company acceptable to the Rating Agencies which is incorporated under the laws of the United States of America or any state thereof pursuant to Section 3.04, which account shall bear a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Trust or any other account serving a similar function acceptable to the Rating Agencies. Funds in the Certificate Account may be invested in Eligible Investments pursuant to Section 3.04(b) and reinvestment earnings thereon shall be paid to the Master Servicer as additional servicing compensation. Funds deposited in the Certificate Account (exclusive of the Master Servicing Fee) shall be held in trust for the Certificateholders and for the uses and purposes set forth in Section 2.01, Section 3.04, Section 3.05, Section 4.01, Section 4.04 and Section 4.05. Certificateholder or Holder : With respect to the Certificates, the Person in whose name a Certificate is registered in the Certificate Register, except that, solely for the purposes of giving any consent pursuant to this Agreement, any Certificate registered in the name of the Company, the Master Servicer or any affiliate thereof shall be deemed not to be outstanding and the Percentage Interest evidenced thereby shall not be taken into account in determining whether the requisite percentage of Percentage Interests necessary to effect any such consent has been obtained; provided, that the Trustee may conclusively rely upon an Officer’s Certificate to determine whether any Person is an affiliate of the Company or the Master Servicer. With respect to the REMIC I Regular Interests, the owner of the REMIC I Regular Interests, which as of the Closing Date shall be the Trust. With respect to the REMIC II Regular Interests, the owner of the REMIC II Regular Interests, which as of the Closing Date shall be the Trust. With respect to each Class of REMIC III Regular Interests, the Holder of the Corresponding Class of Certificates. Certificate Interest Rate : For each Class of REMIC I Regular Interests, REMIC II Regular Interests and REMIC III Regular Interests and the Class R-1 Residual Interest, the per annum rate set forth as the Certificate Interest Rate for such Class in the Preliminary Statement hereto. Certificate of Trust : The certificate of trust filed with respect to the Trust with the Secretary of State in accordance with Section 3810(a) of the Statutory Trust Statute. Certificate Principal Balance : For each Certificate of any Class, the portion of the related Class Principal Balance, if any, represented by such Certificate; provided , however , that each Class X Certificate will represent a portion of each of the Class X PO-1 and Class X PO-2 Principal Balances equal to its Percentage Interest in the Class X-L Notional Amount. Certificate Register and Certificate Registrar : The register maintained and the registrar appointed, respectively, pursuant to Section 5.03. Class : All REMIC I Regular Interests or the Class R-1 Residual Interest having the same priority and rights to payments on the Mortgage Loans from the REMIC I Available Distribution Amount, all REMIC II Regular Interests or the Class R-2 Residual Interest having the same priority and rights to payments on the REMIC I Regular Interests from the REMIC II Available Distribution Amount and all REMIC III Regular Interests or the Class R-3 Residual Interest having the same priority and rights to payments on the REMIC II Regular Interests from the RE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||