EXECUTION COPY
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
JPMORGAN CHASE BANK, N.A.,
TRUSTEE
WELLS FARGO BANK, NATIONAL ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION,
SELLER
------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2004
------------------------------------------------------------------------
Structured Asset Mortgage Investments II Inc.
Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates
Series 2004-13
ARTICLE I
Definitions
ARTICLE II
Conveyance of Mortgage Loans; Original Issuance of Certificates
Section 2.01
Conveyance of Mortgage Loans to Trustee......................46
Section 2.02
Acceptance of Mortgage Loans by Trustee......................48
Section 2.03
Assignment of Interest in the Mortgage Loan Purchase
Agreement..................................................50
Section 2.04
Substitution of Mortgage Loans...............................51
Section 2.05
Issuance of Certificates.....................................52
Section 2.06
Representations and Warranties Concerning the Depositor......53
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01
Master Servicer..............................................55
Section 3.02
REMIC-Related Covenants......................................56
Section 3.03
Monitoring of the Servicer...................................56
Section 3.04
Fidelity Bond................................................57
Section 3.05
Power to Act; Procedures.....................................57
Section 3.06
Due-on-Sale Clauses; Assumption Agreements...................58
Section 3.07
Release of Mortgage Files....................................58
Section 3.08
Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee............................59
Section 3.09
Standard Hazard Insurance and Flood Insurance Policies.......60
Section 3.10
Presentment of Claims and Collection of Proceeds.............60
Section 3.11
Maintenance of the Primary Mortgage Insurance Policies.......61
Section 3.12
Trustee to Retain Possession of Certain Insurance
Policies and Documents.....................................61
Section 3.13
Realization Upon Defaulted Mortgage Loans....................62
Section 3.14
Compensation for the Master Servicer.........................62
Section 3.15
REO Property.................................................62
Section 3.16
Annual Officer's Certificate as to Compliance................63
Section 3.17
Annual Independent Accountant's Servicing Report.............63
Section 3.18
Reports Filed with Securities and Exchange Commission........64
Section 3.19
EMC..........................................................65
Section 3.20
UCC..........................................................65
Section 3.21
Optional Purchase of Defaulted Mortgage Loans................65
i
ARTICLE IV
Accounts
Section 4.01
Protected Accounts...........................................66
Section 4.02
Master Servicer Collection Account...........................67
Section 4.03
Permitted Withdrawals and Transfers from the Master
Servicer Collection Account................................68
Section 4.04
Distribution Account.........................................69
Section 4.05
Permitted Withdrawals and Transfers from the
Distribution Account.......................................69
Section 4.06
Reserve Fund.................................................71
Section 4.07
Class XP Reserve Account.....................................72
ARTICLE V
Certificates
Section 5.01
Certificates.................................................73
Section 5.02
Registration of Transfer and Exchange of Certificates........80
Section 5.03
Mutilated, Destroyed, Lost or Stolen Certificates............84
Section 5.04
Persons Deemed Owners........................................84
Section 5.05
Transfer Restrictions on Residual Certificates...............84
Section 5.06
Restrictions on Transferability of Certificates..............85
Section 5.07
ERISA Restrictions...........................................86
Section 5.08
Rule 144A Information........................................87
ARTICLE VI
Payments to Certificateholders
Section 6.01
Distributions on the Certificates............................88
Section 6.02
Allocation of Losses.........................................92
Section 6.03
Payments.....................................................92
Section 6.04
Statements to Certificateholders.............................92
Section 6.05
Monthly Advances.............................................95
Section 6.06
Compensating Interest Payments...............................95
ARTICLE VII
The Master Servicer
Section 7.01
Liabilities of the Master Servicer...........................96
Section 7.02
Merger or Consolidation of the Master Servicer...............96
Section 7.03
Indemnification of the Trustee, the Master Servicer and the
Securities Administrator...................................96
Section 7.04
Limitations on Liability of the Master Servicer and Others...97
Section 7.05
Master Servicer Not to Resign................................98
Section 7.06
Successor Master Servicer....................................98
Section 7.07
Sale and Assignment of Master Servicing......................98
ii
ARTICLE VIII
Default
Section 8.01
Events of Default...........................................100
Section 8.02
Trustee to Act; Appointment of Successor....................102
Section 8.03
Notification to Certificateholders..........................102
Section 8.04
Waiver of Defaults..........................................103
Section 8.05
List of Certificateholders..................................103
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01
Duties of Trustee...........................................104
Section 9.02
Certain Matters Affecting the Trustee and the
Securities Administrator..................................106
Section 9.03
Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans............................107
Section 9.04
Trustee and Securities Administrator May Own Certificates...108
Section 9.05
Trustee's and Securities Administrator's Fees and Expenses..108
Section 9.06
Eligibility Requirements for Trustee and
Securities Administrator..................................109
Section 9.07
Insurance...................................................109
Section 9.08
Resignation and Removal of the Trustee and Securities
Administrator.............................................109
Section 9.09
Successor Trustee and Successor Securities Administrator....110
Section 9.10
Merger or Consolidation of Trustee or Securities
Administrator.............................................111
Section 9.11
Appointment of Co-Trustee or Separate Trustee...............111
Section 9.12
Federal Information Returns and Reports to
Certificateholders; REMIC Administration..................112
ARTICLE X
Termination
Section 10.01
Termination Upon Repurchase by EMC or its Designee or
Liquidation of the Mortgage Loans.........................115
Section 10.02
Additional Termination Requirements.........................117
iii
ARTICLE XI
Miscellaneous Provisions
Section 11.01
Intent of Parties...........................................119
Section 11.02
Amendment...................................................119
Section 11.03
Recordation of Agreement....................................120
Section 11.04
Limitation on Rights of Certificateholders..................120
Section 11.05
Acts of Certificateholders..................................121
Section 11.06
Governing Law...............................................122
Section 11.07
Notices.....................................................122
Section 11.08
Severability of Provisions..................................123
Section 11.09
Successors and Assigns......................................123
Section 11.10
Article and Section Headings................................123
Section 11.11
Counterparts................................................123
Section 11.12
Notice to Rating Agencies...................................123
iv
APPENDIX
Appendix 1
-
Calculation of Class Y Principal Reduction Amount
EXHIBITS
Exhibit A-1
-
Form of Class A Certificates
Exhibit A-2
-
Form of Class M Certificates
Exhibit A-3
-
Form of Class B Certificates
Exhibit A-4
-
Form of Class R Certificates
Exhibit A-5
-
Form of Class B-IO Certificates
Exhibit A-6
-
Form of Class XP 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 Transferor Representation Letter
Exhibit G
-
Form of Custodial Agreement
Exhibit H
-
GreenPoint Servicing Agreement
Exhibit I
-
Assignment Agreement
Exhibit J
-
Mortgage Loan Purchase Agreement
Exhibit K
-
Form of Trustee Limited Power of Attorney
v
POOLING AND SERVICING AGREEMENT
Pooling
and
Servicing
Agreement
dated as of
December
1,
2004,
among
Structured
Asset
Mortgage
Investments
II Inc.,
a Delaware
corporation,
as
depositor (the
"Depositor"),
JPMorgan Chase Bank, N.A., a banking
association
organized under the laws of the United States of America,
not in its individual
capacity
but solely 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 ("EMC").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor
acquired the Mortgage Loans
from EMC. On the Closing Date,
the Depositor
will sell the Mortgage
Loans and
certain other property to the Trust Fund and receive in
consideration
therefor
Certificates
evidencing the entire beneficial
ownership
interest in the Trust
Fund.
The Trustee on behalf of the Trust
shall make an
election
for the assets
constituting
REMIC I to be treated for federal
income tax purposes as a REMIC.
On the Startup Day, the REMIC I Regular
Interests
will be designated
"regular
interests" in such REMIC and the Class R-I
Certificate
will be designated
the
sole class of "residual interests" in such REMIC.
The Trustee on behalf of the Trust
shall make an election
for the REMIC I
Regular
Interests,
which
constitute 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 R-II Certificate
will be designated the "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 approximately $561,021,570. The initial principal
amount of the
Certificates will not exceed such Outstanding Principal Balance.
In consideration of the mutual agreements herein contained,
the Depositor,
the Master Servicer, the Securities Administrator,
EMC and the Trustee agree as
follows:
ARTICLE I
Definitions
Whenever used in this Agreement,
the following
words and phrases,
unless
otherwise
expressly
provided or unless the context otherwise
requires,
shall
have the meanings specified in this Article.
1
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 the
Servicer), or (y) as
provided in the GreenPoint Servicing Agreement,
to the extent applicable to the
Servicer, but in no event below the standard set forth in clause
(x).
Account: The Master Servicer Collection Account, the Distribution
Account,
the
Protected
Account
or the Class XP Reserve
Account,
as the
context
may
require.
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.
Applicable Credit Rating: For any long-term deposit or security,
a credit
rating of AAA in the case of S&P or Aaa in the case of Moody's
(or with
respect
to
investments
in money market funds, a credit rating of "AAAm" or "AAAm-G" in
the case of S&P and the highest
rating
given by Moody's for money market funds
in the case of Moody's).
For any short-term deposit or security, or a rating of
A-l+ in the case of S&P or Prime-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.
Applied Realized Loss Amount:
With respect to any Distribution Date and a
Class of Certificates
(other than the Class B-IO
Certificates and the Residual
Certificates),
the sum of the
Realized
Losses
with
respect to the
Mortgage
Loans, which are to be applied in reduction of the Certificate
Principal Balance
of such Class of
Certificates
pursuant to this Agreement in an amount equal to
the amount, if any, by which, (i) the aggregate Certificate
Principal Balance of
all
of
the
Certificates
(after
all
distributions
of
principal
on
such
Distribution Date) exceeds (ii) the aggregate Stated Principal
Balance of all of
the Mortgage Loans for such Distribution
Date. The Applied Realized Loss Amount
shall be
allocated
to first to the
Class
B-2
Certificates,
the
Class
B-1
Certificates, the Class M-2 Certificates and the Class M-1
Certificates, in that
order (so long as their respective
Certificate Principal Balances have not been
reduced to zero), and thereafter Realized Losses shall be allocated
to the Class
A-2
Certificates
and
Class
A-1
Certificates,
in
that
order,
until
the
Certificate Principal Balance of each such Class has been reduced
to zero.
2
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 Agreement:
The agreement attached hereto as Exhibit I, whereby
the GreenPoint
Servicing
Agreement was assigned to the Trustee for the benefit
of the Certificateholders.
Assignment of Proprietary Lease:
With respect to a Cooperative Loan, the
assignment of the related Cooperative Lease from the Mortgagor to
the originator
of the Cooperative Loan.
Assumed Final Distribution Date:
November 25, 2034, or if such day is not
a Business Day, the next succeeding Business Day.
Available Funds: With respect to each Distribution
Date, the aggregate of
Principal Funds and Interest Funds for such Distribution Date.
Bankruptcy Code: The United States Bankruptcy Code, as amended as
codified
in 11 U.S.C. ss.ss. 101-1330.
Basis Risk Shortfall: With respect to any Distribution Date and
each Class
of
Offered
Certificates,
the
excess,
if any,
of (a) the
amount of Current
Interest
that
such
Class
would
have
been
entitled
to
receive
on
such
Distribution
Date had the applicable
Pass-Though Rate been calculated at a per
annum rate equal to the lesser of (i)
One-Month
LIBOR plus the related
Margin
and (ii) 11.50% over (b) the amount of Current Interest on such
Class of Offered
Certificates
calculated
using a Pass-Though
Rate equal to the
applicable Net
Rate Cap for such Distribution Date.
Basis
Risk
Shortfall
Carry
Forward
Amount:
With
respect
to
any
Distribution Date and each Class of Offered Certificates,
Basis Risk Shortfalls
for all
previous
Distribution
Dates
not
previously
paid
from
any
source
including the Excess
Cashflow and payments
under the Cap
Contracts,
together
with interest thereon at a rate equal to the related
Pass-Through Rate for such
Class of Offered Certificates for such Distribution Date.
Book-Entry Certificates: Initially, all Classes of Certificates
other than
the Class B-IO, Class XP and the Residual Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or
(ii) a day
on which the New York Stock
Exchange
or Federal
Reserve is closed or on which
banking
institutions
in the
jurisdiction
in which the
Trustee,
the
Master
Servicer, Custodian, the Servicer or the Securities Administrator
are authorized
or obligated by law or executive order to be closed.
Cap Contract:
With respect to any of the Class A-1, Class A-2, Class M-1,
Class M-2,
Class B-1 or Class B-2
Certificates,
the respective cap contracts,
dated December 30, 2004, between the Trustee,
on behalf of the Class A-1, Class
A-2,
Class M-1, Class M-2,
Class B-1 or Class B-2
Certificateholders,
as the
case may be, and Bear Stearns Financial Products Inc.
3
Cap Contract Payment Amount:
With respect to any Distribution
Date and a
Cap
Contract,
the amounts
received
from such Cap
Contract,
if any, on such
Distribution Date.
Certificate: Any mortgage pass-through certificate evidencing a
beneficial
ownership
interest in the Trust Fund signed and countersigned by the Trustee
in
substantially
the forms annexed
hereto as Exhibits A-1, A-2, A-3, A-4, A-5 and
A-6, with the blanks therein appropriately completed.
Certificate Owner: Any Person who is the beneficial owner of a
Certificate
registered in the name of the Depository or its nominee.
Certificate Principal Balance: With respect to any Certificate
(other than
the Class B-IO
Certificates or the Class R Certificates) as of any Distribution
Date, the initial
principal
amount of such
Certificate
plus in the case of a
Subordinate
Certificates,
any Subsequent
Recoveries
added to the Certificate
Principal Balance of such Certificates pursuant to Section 6.02(b)
hereof, minus
the sum of (i) all amounts
distributed on previous
Distribution
Dates on such
Certificate with respect to principal and (ii) any Applied Realized
Loss Amounts
allocated to such Certificate on previous
Distribution
Dates.
With respect to
any such Class of Certificates,
the Certificate
Principal Balance thereof will
equal the sum of the Certificate
Principal Balances of all Certificates in such
Class.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder: A Holder of a Certificate.
Class:
With respect to the
Certificates,
A-1, A-2, R-I, R-II, M-1, M-2,
B-1, B-2, XP and B-IO.
Class A
Certificates:
The
Class
A-1
Certificates
and the
Class
A-2
Certificates.
Class A Principal
Distribution
Amount:
For any
Distribution
Date,
an
amount equal to the excess, if any, of (i) the aggregate
Certificate
Principal
Balance of the Class A Certificates
immediately prior to such Distribution Date
over (ii) the
excess
of (a) the
aggregate
Stated
Principal
Balance
of the
Mortgage
Loans
for such
Distribution
Date
over (b) the
product
of (1) the
aggregate Stated Principal
Balance of the Mortgage Loans for such
Distribution
Date
and
(2)
the
sum
of
(x)
15.00%
and
(y)
the
Current
Specified
Overcollateralization Percentage for such Distribution Date.
Class B Certificates: The Class B-1 and Class B-2 Certificates.
Class B-IO Advances:
As defined in Section 6.01(b).
Class B-IO Distribution Amount: With respect to any Distribution
Date, the
Current
Interest
for the Class B-IO
Certificate
for such
Distribution
Date
(which shall be deemed
distributable to the REMIC II Regular Interest
B-IO-I);
provided,
however,
that
on and
after
the
Distribution
Date on
which
the
aggregate
Certificate
Principal
Balance of Class A-1,
Class A-2,
Class M-1,
Class M-2,
Class B-1 or Class B-2
Certificates
has been reduced to zero,
the
Class B-IO Distribution
Amount shall include the
Overcollateralization
Amount
(which shall be deemed
distributable,
first, to the REMIC II Regular
Interest
B-IO-I in respect of accrued and unpaid interest
thereon until such accrued and
unpaid interest shall have been reduced to zero and, thereafter, to
the REMIC II
Regular Interest B-IO-P in respect of the principal balance
thereof).
4
Class
B-IO
Pass-Through
Rate:
The Class
B-IO
Certificates
will bear
interest at a per annum rate equal to the
percentage
equivalent of a fraction,
the numerator of which is the sum of the amounts calculated
pursuant to clauses
(i)
through
(iii)
below,
and
the
denominator
of
which
is the
aggregate
Uncertificated
Principal Balance of the REMIC I Regular Interests. For purposes
of
calculating
the
Pass-Through
Rate for the Class
B-IO
Certificates,
the
numerator is equal to the sum of the following components:
(i)
the
Uncertificated
Pass-Through
Rate for REMIC I Regular
Interest
LT1
minus
the
Marker
Rate,
applied
to a
notional
amount
equal
to
the
Uncertificated Principal Balance of REMIC I Regular Interest LT1;
(ii)
the
Uncertificated
Pass-Through
Rate for REMIC I Regular
Interest
LT2
minus
the
Marker
Rate,
applied
to a
notional
amount
equal
to
the
Uncertificated Principal Balance of REMIC I Regular Interest LT2;
and
(iii) the
Uncertificated
Pass-Through
Rate for REMIC I Regular
Interest
LT4
minus twice the Marker
Rate,
applied to a notional
amount
equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT4.
Class B-1 Principal
Distribution
Amount:
For any Distribution
Date, an
amount equal to the excess, if any, of (i) the Certificate
Principal Balance of
the Class B-1 Certificates immediately prior to such Distribution
Date over (ii)
the excess of (a) the aggregate Stated
Principal
Balance of the Mortgage Loans
for such
Distribution
Date over (b) the sum of (1) the
aggregate
Certificate
Principal
Balance of the Class A
Certificates
(after
taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date),
(2) the
Certificate
Principal
Balance
of the Class M-1
Certificates
(after
taking into account the payment of the Class M-1 Principal
Distribution
Amount
on such Distribution
Date), (3) the Certificate
Principal Balance of the Class
M-2
Certificates
(after
taking
into
account
the
payment
of the Class M-2
Principal
Distribution Amount on such Distribution Date) and (4) the product
of
(x) the
aggregate
Stated
Principal
Balance
of the
Mortgage
Loans for such
Distribution
Date and (y) the sum of (I) 1.60% and (II) the
Current
Specified
Overcollateralization Percentage for such Distribution Date.
Class B-2 Principal
Distribution
Amount:
For any Distribution
Date, an
amount equal to the excess, if any, of (i) the Certificate
Principal Balance of
the Class B-2 Certificates immediately prior to such Distribution
Date over (ii)
the excess of (a) the aggregate Stated
Principal
Balance of the Mortgage Loans
for such
Distribution
Date over (b) the sum of (1) the
aggregate
Certificate
Principal
Balance of the Class A
Certificates
(after
taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date),
(2) the
Certificate
Principal
Balance
of the Class M-1
Certificates
(after
taking into account the payment of the Class M-1 Principal
Distribution
Amount
on such Distribution
Date), (3) the Certificate
Principal Balance of the Class
M-2
Certificates
(after
taking
into
account
the
payment
of the Class M-2
Principal
Distribution
Amount on such Distribution
Date), (4) the Certificate
Principal
Balance of the Class B-1 Certificates
(after taking into account the
payment
of the Class B-1
Principal
Distribution
Amount on such
Distribution
Date) and (5) the product of (x) the aggregate Stated
Principal
Balance of the
Mortgage
Loans
for
such
Distribution
Date
and
(y) the
Current
Specified
Overcollateralization Percentage for such Distribution Date.
5
Class M Certificates: The Class M-1 and Class M-2 Certificates.
Class M-1 Principal
Distribution
Amount:
For any Distribution
Date, an
amount equal to the excess, if any, of (i) the Certificate
Principal Balance of
the Class M-1 Certificates immediately prior to such Distribution
Date over (ii)
the excess of (a) the aggregate Stated
Principal
Balance of the Mortgage Loans
for such
Distribution
Date over (b) the sum of (1) the
aggregate
Certificate
Principal
Balance of the Class A
Certificates
(after
taking into account the
payment of the Class A Principal
Distribution Amount on such Distribution Date)
and (2) the
product
of (x)
the
aggregate
Stated
Principal
Balance
of the
Mortgage Loans for such
Distribution Date and (y) the sum of (I) 8.80% and (II)
the Current
Specified
Overcollateralization
Percentage for such
Distribution
Date.
Class M-2 Principal
Distribution
Amount:
For any Distribution
Date, an
amount equal to the excess, if any, of (i) the Certificate
Principal Balance of
the Class M-2 Certificates immediately prior to such Distribution
Date over (ii)
the excess of (a) the aggregate Stated
Principal
Balance of the Mortgage Loans
for such
Distribution
Date over (b) the sum of (1) the
aggregate
Certificate
Principal
Balance of the Class A
Certificates
(after
taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date),
(2) the
Certificate
Principal
Balance
of the Class M-1
Certificates
(after
taking into account the payment of the Class M-1 Principal
Distribution
Amount
on such
Distribution
Date) and (3) the
product
of (x) the
aggregate
Stated
Principal
Balance of the Mortgage Loans for such
Distribution Date and (y) the
sum of (I) 4.10% and (II) the Current Specified
Overcollateralization Percentage
for such Distribution Date.
Class R Certificates: The Class R-I and R-II Certificates.
Class R-I Certificate:
Any one of the Class R-I Certificates
executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the
form annexed
hereto as Exhibit A-5 and
evidencing an interest
designated as a
"residual interest" in REMIC I for purposes of the REMIC
Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates
executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the
form annexed
hereto as Exhibit A-5 and
evidencing an interest
designated as a
"residual interest" in REMIC II for purposes of the REMIC
Provisions.
Class XP Reserve
Account:
The account
established and maintained by the
Master Servicer pursuant to Section 4.07 hereof.
6
Closing Date: December 30, 2004.
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 designated office of the Trustee where at any
particular
time its corporate
trust
business
with respect to this
Agreement
shall
be
administered,
which
office
at the
date of the
execution
of this
Agreement is located at 4 New York Plaza,
6th Floor,
New York, New York 10004,
Attention:
Institutional Trust
Services/Global Debt, Structured Asset Mortgage
Investments II Inc., Bear Stearns ALT-A Trust 2004-13,
or at such other address
as the Trustee may designate from time to time.
Current Interest:
As of any Distribution Date, with respect to each Class
of
Certificates
(other
than
the
Class
XP
Certificates
and
the
Class
R
Certificates),
(i) the interest accrued on the Certificate Principal Balance or
Notional
Amount,
as applicable,
during the related Interest Accrual Period at
the applicable
Pass-Through
Rate plus any amount
previously
distributed with
respect to interest for such
Certificate
that has been recovered as a voidable
preference by a trustee in bankruptcy
minus (ii) the sum of (a) any
Prepayment
Interest
Shortfall
for such
Distribution
Date,
to the extent not covered by
Compensating
Interest
Payments
and
(b) any
shortfalls
resulting
from
the
application of the Relief Act during the related Due Period;
provided,
however,
that for purposes of calculating
Current
Interest for any such Class,
amounts
specified in clauses (ii)(a) and (ii)(b) hereof for any such
Distribution
Date
shall be
allocated
first
to the
Class
B-IO
Certificates
and the
Residual
Certificates
in
reduction
of
amounts
otherwise
distributable
to
such
Certificates on such Distribution Date and then any excess shall be
allocated to
each other Class of
Certificates
pro rata based on the
respective
amounts of
interest
accrued
pursuant
to clause
(i)
hereof
for each such Class on such
Distribution Date.
Current Specified
Overcollateralization
Percentage: For any Distribution
Date,
the
percentage
equivalent of a fraction,
the numerator of which is the
Overcollateralization
Target
Amount,
and
the
denominator
of
which
is the
aggregate Stated Principal
Balance of the Mortgage Loans for 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,
and any
successor
custodian
appointed
pursuant
to the
provisions
hereof and of the
Custodial
Agreement.
Cut-off Date: December 1, 2004.
Cut-off Date Balance: $561,021,570.
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.
7
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.
Delinquent:
A Mortgage Loan is "Delinquent" if any payment due thereon is
not made pursuant to the terms of such Mortgage Loan by the close
of business on
the day
such
payment
is
scheduled
to be due.
A
Mortgage
Loan is "30 days
delinquent"
if such
payment has not been
received by the close of business on
the last day of the month immediately succeeding the month in which
such payment
was due.
For
example,
a Mortgage
Loan with a payment
due on December 1 that
remained
unpaid
as of the
close of
business
on
January
31
would
then be
considered to be 30 to 59 days delinquent.
Similarly for "60 days
delinquent,"
"90 days delinquent" and so on.
Depositor:
Structured
Asset
Mortgage
Investments
II Inc.,
a Delaware
corporation, and any successor thereto.
Depository:
The Depository Trust Company,
the nominee of which is Cede &
Co., and any successor thereto.
Depository Agreement: The meaning specified in Section 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 GreenPoint Servicing Agreement.
Disqualified
Organization:
Any of the following:
(i) the United States,
any State or political subdivision thereof, any possession of the
United States,
or
any
agency
or
instrumentality
of any of the
foregoing
(other
than
an
instrumentality
which is a corporation
if all of its activities are subject to
tax and, except for the Freddie Mac or any successor
thereto, a majority of its
board of directors is not selected by such governmental
unit), (ii) any foreign
government, any international organization,
or any agency or instrumentality of
any of the
foregoing,
(iii) any
organization
(other
than
certain
farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code
(including
the tax
imposed by Section 511 of
the
Code on
unrelated
business
taxable
income),
(iv)
rural
electric
and
telephone cooperatives described in Section 1381(a)(2)(C) of the
Code or (v) any
other Person so
designated by the Trustee based upon an Opinion of Counsel that
the holding of an ownership
interest in a Residual
Certificate
by such Person
may cause any
2004-13
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.
8
Distribution Account: The trust account or accounts created and
maintained
pursuant to Section
4.04 hereof,
which shall be
denominated
"JPMorgan
Chase
Bank, N.A., as Trustee f/b/o holders of Structured Asset Mortgage
Investments II
Inc.,
Bear Stearns ALT-A Trust
2004-13,
Mortgage
Pass-Through
Certificates,
Series 2004-13 - Distribution Account."
Distribution
Account
Deposit
Date:
The
Business
Day
prior
to
each
Distribution Date.
Distribution
Date:
The 25th day of any
month,
beginning
in the
month
immediately following the month of the Closing Date, or, if such
25th day is not
a Business Day, the Business Day immediately following.
DTC Custodian:
JPMorgan Chase Bank,
N.A., and 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 GreenPoint 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 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
(ii))
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 the Certificates
then rated by
the Rating Agencies). Eligible Accounts may bear interest.
9
EMC: EMC Mortgage Corporation, and any successor thereto.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
Event of Default: An event of default described in Section 8.01.
Excess
Cashflow:
With respect to any
Distribution
Date, the sum of (i)
Remaining
Excess
Spread
for
such
Distribution
Date
and
(ii)
Overcollateralization
Release
Amount
for such
Distribution
Date;
provided,
however, that the Excess Cashflow shall include Principal Funds on
and after the
Distribution
Date on which the aggregate
Certificate
Principal Balance of the
Class A-1, Class A-2, Class M-1, Class M-2, Class B-1 and Class B-2
Certificates
has been reduced to zero (other than Principal
Funds
otherwise
distributed to
the Holders of Class A-1,
Class A-2,
Class M-1, Class M-2, Class B-1 and Class
B-2 Certificates on such Distribution Date).
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 Spread:
With respect to any Distribution Date, the excess, if any,
of (i) the Interest
Funds for such
Distribution
Date over (ii) the sum of the
Current Interest on the Offered
Certificates and Interest Carry Forward Amounts
on the Class A Certificates, in each case for such Distribution
Date.
Extra
Principal
Distribution
Amount:
With respect to any
Distribution
Date, the lesser of (i) the excess, if any, of the
Overcollateralization
Target
Amount for such Distribution Date over the Overcollateralization
Amount for such
Distribution Date and (ii) the Excess Spread for such Distribution
Date.
Fannie Mae: Federal National Mortgage Association, and any
successor thereto.
FDIC: Federal Deposit Insurance Corporation, and any successor
thereto.
Final
Certification:
The
certification
substantially
in the
form
of
Exhibit Three to the Custodial Agreement.
Fiscal Quarter:
November
1
through
the last day of
February,
March 1
through May 31, June 1 through August 31, or September 1 through
November 30, as
applicable.
Fitch:
Fitch Ratings, and any successor thereto.
10
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 Certificate
Principal Balance of such Certificate and
the
denominator of which is the
Certificate
Principal
Balance of such Class.
With respect to the
Certificates
in the aggregate,
the
fractional
undivided
interest
evidenced
by (i) each
Residual
Certificate
will be deemed to equal
0.50% multiplied by the percentage interest of such Residual
Certificate,
(ii)
the
Class
B-IO
Certificates
will
be
deemed
to
equal
1.00%
and
(iii) a
Certificate
of any other Class will be deemed to equal 98.00%
multiplied
by a
fraction,
the numerator of which is the Certificate
Principal
Balance of such
Certificate and the denominator of which is the aggregate
Certificate Principal
Balance of all the Certificates other than the Class B-IO
Certificates.
Freddie
Mac:
Freddie
Mac,
formerly
the
Federal
Home
Loan
Mortgage
Corporation, and any successor thereto.
Global Certificate:
Any Private Certificate registered in the name of the
Depository
or its nominee,
beneficial
interests in which are reflected on the
books of the Depository or on the books of a Person
maintaining an account with
such Depository
(directly or as an indirect
participant in accordance with the
rules of such depository).
GreenPoint: GreenPoint Mortgage Funding, Inc., and any successor
thereto.
GreenPoint
Servicing
Agreement:
The Purchase,
Warranties and Servicing
Agreement,
dated as of September 1, 2003,
between
GreenPoint and EMC attached
hereto as Exhibit H.
Gross Margin:
As to each Mortgage Loan, the fixed percentage set forth in
the related
Mortgage Note and
indicated on the Mortgage
Loan
Schedule
which
percentage
is added to the related Index on each
Interest
Adjustment
Date to
determine
(subject to rounding,
the minimum and maximum Mortgage Interest Rate
and the Periodic
Rate Cap) the Mortgage
Interest
Rate until the next Interest
Adjustment Date.
Holder:
The
Person in whose
name a
Certificate
is
registered
in the
Certificate
Register,
except that,
subject to Sections 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
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.
11
Index:
The index,
if any,
specified in a Mortgage
Note by reference to
which the related Mortgage Interest Rate will be adjusted from time
to time.
Individual Certificate:
Any Private Certificate registered in the name of
the Holder other than the Depository or its nominee.
Initial
Certification:
The
certification
substantially
in the form of
Exhibit 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,
including
the related
Servicer's
costs and expenses
incurred in connection
with
presenting
claims
under the related Insurance Policies.
Interest Accrual Period: With respect to each Class of Certificates
(other
than the Class XP Certificates and Residual
Certificates),
the period from and
including
the
preceding
Distribution
Date
(or,
in the
case
of the
first
Distribution
Date, from the Closing Date) to and including the day prior to the
current Distribution Date.
Interest
Adjustment
Date:
With respect to a Mortgage Loan, the date, if
any,
specified in the related Mortgage Note on which the Mortgage
Interest Rate
is subject to adjustment.
Interest
Carry
Forward
Amount:
As of any
Distribution
Date
and with
respect to each Class of
Certificates
(other
than the Class XP
Certificates,
Class B-IO Certificates and Residual Certificates), the sum of (i)
the excess of
(a) the Current Interest for such Class with respect to prior
Distribution Dates
over (b) the amount
actually
distributed
to such Class of
Certificates
with
respect to interest on or after such prior
Distribution Dates and (ii) interest
thereon
(to
the
extent
permitted
by
applicable
law)
at
the
applicable
Pass-Through
Rate
for such
Class
for the
related
Interest
Accrual
Period
including the Interest Accrual Period relating to such Distribution
Date.
12
Interest
Funds:
For
any
Distribution
Date
(i)
the
sum,
without
duplication,
of (a) all scheduled interest collected in respect to the Mortgage
Loans
during the related Due Period less the
related
Servicing
Fee,
(b) all
Monthly Advances relating to interest with respect to the Mortgage
Loans made on
or prior to the related
Distribution Account Deposit Date, (c) all Compensating
Interest Payments with respect to the Mortgage Loans and required
to be remitted
by the Master
Servicer
pursuant to this Agreement or the Servicer
pursuant to
the GreenPoint
Servicing
Agreement with respect to such Distribution Date, (d)
Liquidation
Proceeds with respect to the Mortgage
Loans
collected
during the
related Prepayment Period (or, in the case of Subsequent
Recoveries,
during the
related Due Period), to the extent such Liquidation Proceeds relate
to interest,
(e) all
amounts
relating
to
interest
with
respect
to each
Mortgage
Loan
purchased by EMC pursuant to Sections 2.02 and 2.03 or by the
Depositor pursuant
to Section
3.21 during the related Due Period and (f) all amounts in respect
of
interest
paid by EMC
pursuant
to
Section
10.01,
in each case to the extent
remitted by EMC or the Servicer,
as
applicable,
to the
Distribution
Account
pursuant to this Agreement or the GreenPoint
Servicing Agreement minus (ii) all
amounts
relating to interest
required
to be
reimbursed
pursuant to Sections
4.01, 4.03 and 4.05 or as otherwise set forth in this Agreement.
Interim
Certification:
The
certification
substantially
in the form of
Exhibit Two to the Custodial Agreement.
Investment
Letter:
The
letter
to be
furnished
by each
Institutional
Accredited
Investor
which
purchases
any
of
the
Private
Certificates
in
connection
with such purchase,
substantially
in the form set forth as Exhibit
F-1 hereto.
LIBOR
Business Day: Any day other than a Saturday or a Sunday or a day on
which
banking
institutions
in the city of London,
England
are
required
or
authorized by law to be closed.
LIBOR
Determination
Date:
With
respect
to
each
Class
of
Offered
Certificates and for the first Interest Accrual Period,
December 27, 2005. With
respect to each Class of Offered
Certificates
and any Interest
Accrual Period
thereafter,
the second LIBOR
Business Day preceding the
commencement
of such
Interest Accrual Period.
Liquidated
Mortgage
Loan:
Any
defaulted
Mortgage Loan as to which the
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 Servicer or the Master
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
Servicer,
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
Subsequent
Recoveries.
13
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.
Lost Notes: The original
Mortgage Notes that have been lost, as indicated
on the Mortgage Loan Schedule.
Margin:
With
respect to any
Distribution
Date on or prior to the first
possible Optional Termination Date and (i) the Class A-1
Certificates, 0.37% per
annum,
(ii) the Class A-2
Certificates,
0.44% per annum,
(iii) the Class M-1
Certificates, 0.62% per annum, (iv) the Class M-2 Certificates,
1.05% per annum,
(v) the
Class
B-1
Certificates,
1.75%
per
annum
and
(vi) the
Class
B-2
Certificates,
2.00% per annum; and with respect to any Distribution
Date after
the first possible Optional Termination Date and (i) the Class A-1
Certificates,
0.74% per annum,
(ii) the Class A-2
Certificates,
0.88% per annum,
(iii) the
Class M-1 Certificates, 0.93% per annum, (iv) the Class M-2
Certificates, 1.575%
per annum, (v) the Class B-1
Certificates,
2.625% per annum and (vi) the Class
B-2 Certificates, 3.00% per annum
Marker
Rate:
With
respect
to
the
Class
B-IO
Certificates
and
any
Distribution
Date, a per annum rate equal to two (2) times the weighted average
of the
Uncertificated
REMIC I Pass-Through
Rates for REMIC I Regular Interest
LT2 and REMIC I Regular Interest LT3.
Master
Servicer:
As of the Closing
Date,
Wells
Fargo
Bank,
National
Association and, thereafter,
its respective successors in interest who meet the
qualifications of the Servicing Agreement and this Agreement.
Master Servicer Certification:
A written certification covering servicing
of the
Mortgage
Loans by the
Servicer
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
"JPMorgan
Chase
Bank,
N.A.,
as Trustee
f/b/o
holders
of
Structured
Asset
Mortgage
Investments
II Inc.,
Bear Stearns ALT-A Trust 2004-13,
Mortgage
Pass-Through
Certificates,
Series 2004-13 - Master Servicer
Collection
Account," and which
shall be an Eligible Account.
14
Master Servicing Compensation: The meaning specified in Section
3.14.
Material Defect: The meaning specified in Section 2.02(b).
Maximum
Lifetime
Mortgage
Rate:
The maximum
level to which a Mortgage
Interest Rate can adjust in accordance with its terms,
regardless of changes in
the applicable Index.
MERS:
Mortgage
Electronic
Registration
Systems,
Inc.,
a
corporation
organized
and
existing
under
the
laws of the
State
of
Delaware,
and any
successor thereto.
MERS
System:
The
system
of
recording
transfers
of
Mortgage
Loans
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered with
MERS on the MERS System.
Minimum
Lifetime
Mortgage
Rate:
The minimum
level to which a Mortgage
Interest Rate can adjust in accordance with its terms,
regardless of changes in
the applicable Index.
MOM Loan:
With respect to any Mortgage Loan, MERS acting as the mortgagee
of such
Mortgage
Loan,
solely as nominee for the
originator of such Mortgage
Loan and its successors and assigns, at the origination thereof.
Monthly Advance:
An advance of principal or interest
required to be made
by the Servicer
pursuant to the
GreenPoint
Servicing
Agreement or the Master
Servicer pursuant to Section 6.05.
Monthly Delinquency
Percentage:
With respect to a Distribution Date, the
percentage
equivalent
of a fraction,
the
numerator of which is the aggregate
Stated
Principal
Balance
of the
Mortgage
Loans
that
are 60
days
or more
Delinquent or are in bankruptcy or
foreclosure
or are REO
Properties for such
Distribution Date and the denominator of which is the aggregate
Stated Principal
Balance of Mortgage Loans for such Distribution Date.
Moody's: Moody's Investors Service, Inc., and any 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 equal to the "Mortgage
Interest Rate" set forth with respect thereto on
the Mortgage Loan Schedule.
15
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
theret o, and (ii) with respect to each
Mortgage
Loan other than a Cooperative
Loan,
each related
Mortgage
Note,
Mortgage and Mortgage
File and all rights
appertaining thereto), including a mortgage loan the property
securing which has
become an REO Property.
Mortgage Loan
Purchase
Agreement:
The Mortgage Loan Purchase
Agreement
dated as of December 30,
2004,
between EMC, 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,
as amended
from time to time to reflect
the
repurchase or
substitution
of Mortgage Loans pursuant to this Agreement or the
Mortgage Loan Purchase Agreement, as the case may be.
Mortgage
Note:
The
originally
executed
note or other
evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgaged
Property:
Land and improvements
securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO
Property,
such
REO
Property or, in the case of a
Cooperative
Loan,
the related
Cooperative
Lease and Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note.
Net
Interest
Shortfall:
With
respect
to any
Distribution
Date,
the
Prepayment
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 by the
Master
Servicer or the Servicer in
accordance
with the
GreenPoint
Servicing
Agreement
or this
Agreement
and
(ii)
unreimbursed
advances
by the
Master
Servicer or the Servicer and Monthly Advances.
Net Rate:
With respect to each Mortgage Loan, the Mortgage
Interest Rate
in effect from time to time less the Servicing Fee Rate expressed
as a per annum
rate.
Net Rate Cap: For any
Distribution
Date, the weighted average of the Net
Rates of the
Mortgage
Loans,
weighted
on the basis of the
Stated
Principal
Balances
thereof as of the
preceding
Distribution
Date,
as
adjusted
to an
effective rate reflecting the accrual of interest on the basis of a
360-day year
and the actual number of days elapsed in the related
Interest
Accrual
Period.
For federal income tax purposes, the Net Rate Cap is equal to the
Uncertificated
REMIC I Pass-Through Rate for the REMIC I Regular Interest LT1.
Nonrecoverable
Advance:
Any
advance
or Monthly
Advance
(i) which was
previously
made or is proposed to be made by the Master
Servicer,
the Trustee
(as successor Master Servicer) or the Servicer and (ii) which, in
the good faith
judgment of the Master
Servicer,
the Trustee or the 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 Servicer from Liquidation Proceeds, Insurance Proceeds or
future payments
on the Mortgage Loan for which such advance or Monthly Advance was
made.
16
Notional
Amount:
The
Notional
Amount
of the Class
B-IO
Certificates
immediately
prior to any
Distribution
Date is equal to the
aggregate
of the
Uncertificated Principal Balances of the REMIC I Regular Interests.
Offered
Certificate:
Any
Senior
Certificate
or
Offered
Subordinate
Certificate.
Offered
Subordinate
Certificate:
Any of the Class M-1, Class M-2, Class
B-1 or Class B-2 Certificates.
Officer's Certificate:
A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board,
the President or a Vice
President or Assistant
Vice
President
or other
authorized
officer
of the
Master
Servicer
or the
Depositor,
as
applicable,
and
delivered to the Trustee,
as required by this
Agreement.
One-Month
LIBOR:
With respect to any Interest
Accrual Period,
the rate
determined by the Securities
Administrator
on the related LIBOR
Determination
Date on the
basis of the
rate for U.S.
dollar
deposits
for one
month
that
appears on
Telerate
Screen
Page 3750 as of 11:00 a.m.
(London
time) on such
LIBOR
Determination
Date;
provided that the parties hereto
acknowledge
that
One-Month
LIBOR for the first
Interest
Accrual Period shall equal 2.4175% per
annum.
If such rate does not
appear
on such page (or such
other
page as may
replace that page on that service, or if such service is no longer
offered, such
other
service for
displaying
One-Month
LIBOR or
comparable
rates as may be
reasonably
selected by the Securities
Administrator),
One-Month LIBOR for the
applicable
Interest
Accrual Period will be the Reference Bank Rate. If no such
quotations can be obtained by the Securities Administrator and no
Reference Bank
Rate is available,
One-Month
LIBOR will be One-Month
LIBOR
applicable to the
preceding Interest Accrual Period.
Opinion of Counsel:
A written opinion of counsel who is or are acceptable
to the
Trustee
and who,
unless
required to be
Independent
(an
"Opinion of
Independent
Counsel"),
may be internal counsel for EMC, the Master Servicer or
the Depositor.
Optional
Termination
Date: The Distribution
Date on which the aggregate
Stated
Principal
Balance of all of the Mortgage Loans is equal to or less than
20% of the aggregate Stated Principal Balance of all of the
Mortgage Loans as of
the Cut-off Date.
Original
Subordinate
Principal
Balance:
The
sum
of
the
aggregate
Certificate
Principal Balances of each Class of Subordinate
Certificates as of
the Closing Date.
Original
Value:
The lesser of (i) the Appraised
Value or (ii) the sales
price of a Mortgaged
Property at the time of
origination
of a Mortgage
Loan,
except in instances where either clauses (i) or (ii) is
unavailable,
the other
may be used to determine the Original Value, or if both clauses (i)
and (ii) are
unavailable,
Original
Value may be determined
from other
sources
reasonably
acceptable to the Depositor.
17
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.
Overcollateralization
Amount:
With respect to any Distribution Date, the
excess,
if any, of (a) the aggregate Stated
Principal
Balance of the Mortgage
Loans for such
Distribution Date over (b) the aggregate
Certificate
Principal
Balance of the Offered Certificates on such Distribution Date
(after taking into
account the payment of
principal
other than any Extra
Principal
Distribution
Amount on such Certificates).
Overcollateralization
Release
Amount:
With respect to any
Distribution
Date is the
lesser
of (x) the sum of the
amounts
described
in
clauses
(a)
through (e) and (g) in the definition of Principal
Funds for such
Distribution
Date and (y) the
excess,
if any, of (i) the
Overcollateralization
Amount for
such Distribution Date (assuming that 100% of such Principal Funds
is applied as
a
principal
payment
on
such
Distribution
Date)
over
(ii)
the
Overcollateralization
Target Amount for such Distribution Date (with the amount
pursuant
to clause (y) deemed to be $0 if the
Overcollateralization
Amount is
less
than
or
equal
to
the
Overcollateralization
Target
Amount
on
that
Distribution Date).
Overcollateralization
Target Amount: With respect to any Distribution Date
(a) prior to the Stepdown Date, 1.05% of the aggregate Stated
Principal
Balance
of the Mortgage
Loans as of the Cut-Off Date, (b) on or after the Stepdown Date
and if a Trigger
Event is not in effect,
the
greater of (i) the lesser of (1)
1.05% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the
Cut-Off
Date and (2)
2.10%
of the then
current
aggregate
Stated
Principal
Balance of the Mortgage Loans as of such
Distribution
Date and (ii) $2,805,108
and (c) on or after the Stepdown Date and if a Trigger
Event is in effect,
the
Overcollateralization
Target Amount for the immediately preceding
Distribution
Date.
Pass-Through
Rate:
As to each
Class
of
Certificates
and the
REMIC I
Regular
Interests,
the rate of interest
determined
as provided
with respect
thereto in Section 5.01(c).
Periodic
Rate Cap:
With
respect
to each
Mortgage
Loan,
the
maximum
adjustment
that
can be made to the
Mortgage
Interest
Rate on each
Interest
Adjustment
Date in
accordance
with its
terms,
regardless
of changes in the
applicable Index.
Permitted
Investments:
Any one or more of the following
obligations
or
securities
held
in
the
name
of
the
Trustee
for
the
benefit
of
the
Certificateholders:
18
(1) 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;
(2)
(a)
demand
or
time
deposits,
federal
funds
or
bankers'
acceptances
issued
by
any
depository
institution
or
trust
company
incorporated
under the laws of the United
States of America or any state
thereof
(including
the Trustee or the Master
Servicer or its Affiliates
acting in its commercial
banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided
that the
commercial
paper and/or the
short-term
debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust
company
at the time of such
investment or
contractual
commitment
providing for
such
investment
have the
Applicable
Credit
Rating or better from each
Rating Agency and (b) any other demand or time deposit or
certificate
of
deposit
that
is
fully
insured
by
the
Federal
Deposit
Insurance
Corporation;
(3)
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;
(4) securities
bearing interest or sold at a discount issued by any
corporation
(including
the
Trustee
or
the
Master
Servicer
or
its
Affiliates) incorporated under the laws of the United States of
America or
any state
thereof that have the
Applicable
Credit Rating or better from
each
Rating
Agency
at
the
time
of
such
investment
or
contractual
commitment
providing
for
such
investment;
provided,
however,
that
securities
issued by any
particular
corporation
will not be
Permitted
Investments
to the extent that
investments
therein
will cause the then
outstanding
principal amount of securities issued by such corporation and
held as part of the
Trust
to
exceed
10% of the
aggregate
Outstanding
Principal
Balances of all the Mortgage
Loans and
Permitted
Investments
held as part of the Trust;
(5) commercial paper (including both
non-interest-bearing
discount
obligations
and
interest-bearing
obligations
payable on demand or on a
specified date not more than 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;
(6) a Reinvestment
Agreement issued by any bank,
insurance company
or other corporation or entity;
(7) any other
demand,
money
market or time
deposit,
obligation,
security or
investment
as may be
acceptable
to each
Rating
Agency as
evidenced in writing by each Rating Agency to the Trustee; and
19
(8) any money
market or common
trust fund
having
the
Applicable
Credit Rating or better from each Rating
Agency,
including any such fund
for which the
Trustee
or the Master
Servicer
or any
affiliate
of the
Trustee or the 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.
Physical
Certificates:
The
Residual
Certificates
and
the
Private
Certificates.
Plan: The meaning specified in Section 5.07(a).
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
Charge Loan:
Any Mortgage Loan for which a Prepayment
Charge
may be assessed and to which such
Prepayment
Charge the Class XP
Certificates
are entitled, as indicated on the Mortgage Loan Schedule.
Prepayment Interest Shortfall:
With respect to any Distribution Date, for
each Mortgage
Loan that was the subject of a partial
Principal
Prepayment,
a
Principal
Prepayment
in full,
or that
became a
Liquidated
Loan
during the
related Prepayment Period,
(other than a Principal Prepayment in full resulting
from the purchase of a Mortgage
Loan pursuant to Section
2.02,
2.03,
3.21 or
10.01
hereof),
the amount,
if any,
by which (i) one month's
interest at the
applicable
Net Rate on the
Stated
Principal
Balance
of such
Mortgage
Loan
immediately
prior
to such
prepayment
(or
liquidation)
or in the
case of a
partial
Principal
Prepayment on the amount of such
prepayment (or liquidation
proceeds)
exceeds (ii) the amount of interest
paid or collected in
connection
with such Principal
Prepayment or such liquidation proceeds less the sum of (a)
any Prepayment Charges and (b) the related Servicing Fee.
Prepayment Period:
With respect to a Distribution Date is the immediately
preceding
calendar month in the case of the Mortgage Loans for which EMC is
the
Servicer and in the case of the Mortgage Loans for which EMC is not
the Servicer
such period as is provided in the GreenPoint Servicing Agreement
with respect to
the Servicer.
20
Primary Mortgage Insurance Policy: A policy underwriting
primary mortgage
insurance.
Principal
Distribution Amount: With respect to each Distribution Date, an
amount
equal
to the
excess
of (i) sum of (a) the
Principal
Funds
for such
Distribution
Date and (b) any
Extra
Principal
Distribution
Amount
for such
Distribution
Date over (ii) any
Overcollateralization
Release Amount for such
Distribution Date..
Principal
Funds:
With
respect to any
Distribution
Date,
(i) the sum,
without
duplication,
of (a) all scheduled
principal collected on the Mortgage
Loans
during the
related
Due Period,
(b) all
Monthly
Advances
relating to
principal
made on the
Mortgage
Loans on or before
the
Distribution
Account
Deposit Date,
(c) Principal
Prepayments
on the Mortgage
Loans,
exclusive of
prepayment charges or penalties, collected during the related
Prepayment Period,
(d) the Stated Principal Balance of each Mortgage Loan that was
purchased by the
Seller pursuant to Section 2.02, 2.03 or 3.21 during the related
Due Period, (e)
the aggregate of all
Substitution
Adjustment
Amounts in
connection
with the
substitution
of Mortgage
Loans pursuant to Section 2.04 during the related Due
Period,
(f)
amounts in respect of
principal
paid by EMC
pursuant to Section
10.01 and (g) all Liquidation
Proceeds
collected during the related Prepayment
Period (or, in the case of Subsequent Recoveries, during the
related Due Period)
on the
Mortgage
Loans,
to the
extent
such
Liquidation
Proceeds
relate to
principal,
in each case to the extent
remitted
by EMC or the
Servicer to the
Distribution
Account
pursuant to this
Agreement or the
GreenPoint
Servicing
Agreement minus (ii) all amounts required to be reimbursed
pursuant to Sections
4.01, 4.03 and 4.05 or as otherwise set forth in this Agreement.
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
the
Repurchase
Proceeds,
but
excluding
the
principal
portion
of Net
Liquidation Proceeds.
Private Certificate:
Any Class XP Certificate,
Class B-IO Certificate or
Class R Certificate.
Prospectus:
The
prospectus,
dated December 20, 2004, as supplemented by
the prospectus
supplement dated December 23, 2004,
relating to the offering of
the Certificates.
Protected Account:
An account
established and maintained for the benefit
of
Certificateholders
by the Servicer
with respect to the Mortgage
Loans and
with respect to REO Property pursuant to the GreenPoint 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
Certificates
rated by the Rating
Agencies as of the Closing Date.
21
Rating Agencies: S&P and Moody's.
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
Mortgaged
Property;
provided,
however,
that in the event the Master Servicer
receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of
the
Realized
Loss with
respect to that
Mortgage
Loan will be reduced to the
extent
such
Subsequent
Recoveries
are
applied
to
reduce
the
Certificate
Principal Balance of any Class of Certificates on any Distribution
Date.
Record Date:
For each Class of
Certificates,
the Business Day preceding
the applicable
Distribution Date so long as such Class of Certificates
remains
in book-entry
form; and
otherwise,
the close of business on the last Business
Day of the month immediately preceding the month of such
Distribution Date.
Reference
Bank: A leading bank selected by the
Securities
Administrator
that is engaged in
transactions
in
Eurodollar
deposits in the
international
Eurocurrency market.
Reference
Bank Rate:
With respect to any Interest
Accrual
Period,
the
arithmetic mean, rounded upwards, if necessary, to the nearest
whole multiple of
0.03125%,
of the offered rates for United States dollar
deposits for one month
that are quoted by the Reference
Banks as of 11:00 a.m., New York City time, on
the related interest
determination
date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to
the aggregate
Certificate
Principal
Balance of all Classes of Offered
Certificates for such
Interest Accrual Period, provided that at least two such Reference
Banks provide
such rate. If fewer than two offered rates appear,
the Reference Bank Rate will
be the arithmetic
mean,
rounded
upwards,
if necessary,
to the nearest whole
multiple of 0.03125%, of the rates quoted by one or more major
banks in New York
City, selected by the securities administrator,
as of 11:00 a.m., New York City
time,
on such date for loans in U.S.
dollars to leading
European
banks for a
period of one month in amounts
approximately equal to the aggregate Certificate
Principal Balance of all Classes of Offered Certificates.
Reinvestment Agreements:
One or more reinvestment agreements,
acceptable
to the Rating Agencies,
from a bank,
insurance company or other corporation or
entity (including the Trustee).
Relief Act: The Servicemembers' Civil Relief Act, or similar state
laws.
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.
22
Remaining Excess Spread: With respect to any Distribution Date, the
excess
of the
related
Excess
Spread over the related
Extra
Principal
Distribution
Amount.
REMIC: A real estate mortgage investment conduit, as defined in the
Code.
REMIC I: That group of assets
contained in the Trust Fund designated as a
REMIC
consisting
of (i) the
Mortgage
Loans,
(ii)
amounts on deposit in the
Master Servicer
Collection Account related to the Mortgage Loans, (iii) any REO
Property
relating
to the
Mortgage
Loans,
(iv) the
rights of the Trust with
respect the Mortgage Loans under the
GreenPoint
Servicing
Agreement,
(v) the
rights of the Trust with respect the Mortgage Loans under any
related Assignment
Agreement or insurance
policy and (vi) any proceeds of the
foregoing,
but not
including the Cap Contract or any proceeds thereof.
REMIC I Available
Distribution Amount: For any Distribution Date, the sum
of the Principal Funds and Interest Funds (other than any
Subsequent Recoveries)
for such Distribution Date.
REMIC I
Distribution
Amount:
For any
Distribution
Date, the following
amounts, in the following order of priority,
shall be distributed by REMIC I to
REMIC II on account of the REMIC I Regular
Interests and the Class R-I Residual
Interest:
(1)
to the extent of the REMIC I Available
Distribution
Amount, to REMIC
II as the holder of the REMIC I Regular
Interests
LT1,
LT2, LT3 and
LT4, pro rata, in an amount equal to (A) their Uncertificated
Accrued
Interest for such
Distribution
Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates;
(2)
the amount of prepayment charges received with respect to the
Mortgage
Loans and
distributable to the Class XP Certificates,
to the REMIC I
Regular Interest LT1;
(3)
to REMIC II as the
holder
of the REMIC I
Regular
Interests,
in an
amount equal to the
remainder
of the REMIC I Available
Distribution
Amount
after the
distributions
made
pursuant
to clause (1) above,
allocated as follows (except as provided below):
(A) in respect of the REMIC I Regular
Interests
LT2, LT3 and
LT4, their respective Principal Distribution Amounts;
(B) in
respect
of the
REMIC I
Regular
Interest
LT1,
any
remainder
until the
Uncertificated
Principal
Balance
thereof is
reduced to zero; and
(C) any remainder in respect of the REMIC I Regular
Interests
LT2,
LT3
and
LT4,
pro
rata
according
to
their
respective
Uncertificated
Principal
Balances as reduced by the
distributions
deemed
made
pursuant to clause (A) above,
until their
respective
Uncertificated Principal Balances are reduced to zero;
23
(4)
the amount of any Subsequent Recoveries for such Distribution Date,
to
REMIC II as the holder of the REMIC I Regular Interests, in respect
of
the
REMIC I
Regular
Interests
LT1,
LT2,
LT3 and
LT4,
pro
rata
according to the amount of
unreimbursed
Realized
Losses
previously
allocated
to each such Class
pursuant to the
definition
of REMIC I
Realized
Loss;
provided,
however,
that
any
amounts
distributed
pursuant
to this
clause
(4)
shall
not
cause a
reduction
in the
Uncertificated
Principal
Balances
of
any of the
REMIC
I
Regular
Interests; and
(5)
any remaining amounts of the REMIC I Available
Distribution Amount or
of
any
Subsequent
Recoveries
to
the
Holders
of
the
Class
R-I
Certificates.
REMIC I
Interests:
The
REMIC I
Regular
Interests
and the
Class
R-I
Certificates.
REMIC I
Principal
Reduction
Amounts:
For any
Distribution
Date,
the
amounts by which the principal
balances of the REMIC I Regular
Interests
LT1,
LT2, LT3 and LT4, respectively, will be reduced on such
Distribution Date by the
allocation of Realized Losses and the
distribution of principal,
determined as
follows:
For purposes of the succeeding
formulas the following
symbols shall have
the meanings set forth below:
~~~
Y1 =
the principal
balance of the REMIC I
Regular
Interest LT1 after
distributions on the prior Distribution Date.
Y2 =
the principal
balance of the REMIC I
Regular
Interest LT2 after
distributions on the prior Distribution Date.
Y3 =
the principal
balance of the REMIC I
Regular
Interest LT3 after
distributions on the prior Distribution Date.
Y4 =
the principal
balance of the REMIC I
Regular
Interest LT4 after
distributions on the prior Distribution Date (note:
Y3 = Y4).
ΔY1 = the REMIC I Regular Interest LT1 Principal Reduction
Amount.
ΔY2 = the REMIC I Regular Interest LT2 Principal Reduction
Amount.
ΔY3 = the REMIC I Regular Interest LT3 Principal Reduction
Amount.
ΔY4 = the REMIC I Regular Interest LT4 Principal Reduction
Amount.
P0 =
the aggregate
principal
balance of the REMIC I Regular Interests
LT1,
LT2,
LT3 and LT4 after
distributions
and the
allocation
of Realized
Losses on the prior Distribution Date.
P1 =
the aggregate
principal
balance of the REMIC I Regular Interests
LT1,
LT2,
LT3 and LT4 after
distributions
and the
allocation
of Realized
Losses to be made on such Distribution Date.
24
ΔP = P0 - P1 = the
aggregate of the REMIC I Regular
Interests
LT1,
LT2, LT3 and LT4 Principal Reduction Amounts.
=
the
aggregate of Realized
Losses to be
allocated
to, and
the principal
distributions to be made on, the Class A-1 Certificates on such
Distribution
Date (including
distributions of accrued and unpaid interest on
the Class B-IO Certificates for prior Distribution Dates).
R0 =
the Net Rate Cap (stated as a monthly
rate) after
giving
effect
to
amounts
distributed
and
Realized
Losses
allocated
on
the
prior
Distribution Date.
R1 =
the Net Rate Cap (stated as a monthly
rate) after
giving
effect
to amounts to be
distributed
and
Realized
Losses to be
allocated
on such
Distribution Date.
α = (Y2 + Y3)/P0. The initial value of α on the Closing
Date for
use on the first Distribution Date shall be 0.0001.
γ0 = the lesser of (A) the sum for all Classes of
Certificates, other
than the Class
B-IO
Certificates,
of the
product
for each
Class of (i) the
monthly
interest rate (as limited by the Net Rate Cap, if applicable)
for such
Class applicable for distributions to be made on such Distribution
Date and (ii)
the aggregate
Certificate
Principal Balance for such Class after distributions
and the
allocation of Realized
Losses on the prior
Distribution
Date and (B)
R0*P0.
γ1 = the lesser of (A) the sum for all Classes of
Certificates, other
than the Class
B-IO
Certificates,
of the
product
for each
Class of (i) the
monthly
interest rate (as limited by the Net Rate Cap, if applicable)
for such
Class
applicable
for
distributions
to
be
made
on
the
next
succeeding
Distribution Date and (ii) the aggregate
Certificate Principal Balance for such
Class after
distributions
and the allocation of Realized
Losses to be made on
such Distribution Date and (B) R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4;
ΔY2 = (α/2){( γ0R1 - γ1R0)/R0R1};
ΔY3 = αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative
numbers.
Otherwise:
(1)
If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = α{γ1R0P0 - γ0R1P1}/{γ1R0};
ΔY4 = ΔY3; and
25
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
(2)
If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = α{γ1R0P0 - γ0R1P1}/{2R1R0P1 -
γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
REMIC I
Realized
Loss:
Realized
Losses
on
Mortgage
Loans
shall
be
allocated to the REMIC I Regular Interests as follows:
Realized Losses shall be
allocated,
first,
to the REMIC I Regular
Interests
LT2, LT3 and LT4 pro rata
according to their respective REMIC I Principal
Reduction Amounts to the extent
thereof in reduction
of the
Uncertificated
Principal
Balance of such REMIC I
Regular Interests and, second,
the remainder,
if any, of Realized Losses shall
be
allocated
to
the
REMIC
I
Regular
Interest
LT1
in
reduction
of
the
Uncertificated Principal Balance thereof.
REMIC I Regular
Interests:
REMIC I Regular Interest LT1, REMIC I Regular
Interest LT2, REMIC I Regular Interest LT3 and REMIC I Regular
Interest LT4.
REMIC I Regular
Interest LT1: A regular
interest in REMIC I that is held
as an asset of REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I Pass-Through
Rate, and that has such other terms as are
described herein.
REMIC I
Regular
Interest
LT1
Principal
Distribution
Amount:
For any
Distribution
Date,
the
excess,
if any, of the REMIC I Regular
Interest
LT1
Principal
Reduction Amount for such
Distribution Date over the Realized Losses
allocated to the REMIC I Regular Interest LT1 on such Distribution
Date.
REMIC I Regular
Interest LT2: A regular
interest in REMIC I that is held
as an asset of REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I Pass-Through
Rate, and that has such other terms as are
described herein.
REMIC I
Regular
Interest
LT2
Principal
Distribution
Amount:
For any
Distribution
Date,
the
excess,
if any, of the REMIC I Regular
Interest
LT2
Principal
Reduction Amount for such
Distribution Date over the Realized Losses
allocated to the REMIC I Regular Interest LT2 on such Distribution
Date.
REMIC I Regular
Interest LT3: A regular
interest in REMIC I that is held
as an asset of REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I Pass-Through
Rate, and that has such other terms as are
described herein.
26
REMIC I
Regular
Interest
LT3
Principal
Distribution
Amount:
For any
Distribution
Date,
the
excess,
if any, of the REMIC I Regular
Interest
LT3
Principal
Reduction Amount for such
Distribution Date over the Realized Losses
allocated to the REMIC I Regular Interest LT3 on such Distribution
Date.
REMIC I Regular
Interest LT4: A regular
interest in REMIC I that is held
as an asset of REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I Pass-Through
Rate, and that has such other terms as are
described herein.
REMIC I
Regular
Interest
LT4
Principal
Distribution
Amount:
For any
Distribution
Date,
the
excess,
if any, of the REMIC I Regular
Interest
LT4
Principal
Reduction Amount for such
Distribution Date over the Realized Losses
allocated to the REMIC I Regular Interest LT4 on such Distribution
Date.
REMIC II: That group of assets contained in the Trust Fund
designated as a
REMIC consisting of the REMIC I Regular Interests.
REMIC II
Certificates:
The REMIC II Regular
Certificates
and the Class
R-II Certificates.
REMIC II Regular Certificates: As defined in Section 5.01(c).
REMIC Opinion:
An Opinion of Independent
Counsel, to the effect that the
proposed action
described
therein would not, under the REMIC
Provisions,
(i)
cause any 2004-13 REMIC to fail to qualify as a REMIC while any
regular interest
in such
2004-13
REMIC
is
outstanding,
(ii)
result
in a tax on
prohibited
transactions
with
respect to any 2004-13
REMIC or (iii)
constitute a taxable
contribution to any 2004-13 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
excess
of (i)
the sum of (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),
(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 and
(c) any costs and damages (if any) incurred by the Trust in
connection
with any
violation of such Mortgage
Loan of any
predatory or abusive
lending laws over
(ii) any portion of the Master
Servicing
Compensation,
Monthly
Advances
and
advances payable to the purchaser of the Mortgage Loan.
27
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.
Reserve Fund:
The separate
trust account
created and
maintained by the
Trustee pursuant to Section 4.06 hereof.
Residual Certificates: Any of the Class R Certificates.
Responsible
Officer:
Any officer
assigned to the Corporate Trust Office
(or any
successor
thereto),
including
any
Vice
President,
Assistant
Vice
President,
Trust
Officer,
any Assistant
Secretary,
any trust officer or any
other officer of the Trustee customarily
performing
functions similar to those
performed
by
any
of
the
above
designated
officers
and
having
direct
responsibility for the
administration of this Agreement,
and any other officer
of the Trustee to whom a matter arising hereunder may be referred.
Rolling Three-Month
Delinquency
Average:
With respect to a Distribution
Date, the average of the Monthly
Delinquency
Percentages for that Distribution
Date and each of the immediately preceding two Distribution Dates.
Rule 144A
Certificate:
The certificate to be furnished by each purchaser
of a Private
Certificate
(which
is also a
Physical
Certificate)
which is a
Qualified
Institutional
Buyer as defined under Rule 144A promulgated under the
Securities Act, substantially in the form set forth as Exhibit F-2
hereto.
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., and
any successor thereto.
Scheduled
Payment:
With respect to any Mortgage Loan and any Due Period,
the scheduled
payment or payments of principal and interest due during such Due
Period on such
Mortgage Loan which either is payable by a Mortgagor in such Due
Period 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.
Securities Act: The Securities Act of 1933, as amended.
28
Securities Administrator:
Wells Fargo Bank, National Association, and any
successor thereto, 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
OR (2) IN
CERTIFICATED
FORM TO AN
"INSTITUTIONAL
ACCREDITED
INVESTOR"
WITHIN
THE
MEANING
THEREOF
IN
RULE
501(a)(1),
(2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN
WHICH
ALL OF THE
EQUITY
OWNERS
COME
WITHIN
SUCH
PARAGRAPHS
PURCHASING
NOT
FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE
THAT
SUCH
REOFFER,
RESALE,
PLEDGE
OR
TRANSFER
IS IN
COMPLIANCE
WITH THE
SECURITIES ACT AND OTHER
APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE
SECURITIES
LAWS
OF THE
UNITED
STATES
AND ANY
OTHER
APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR
ON BEHALF
OF, AN
EMPLOYEE
BENEFIT
PLAN OR OTHER
RETIREMENT
ARRANGEMENT
(A
"PLAN") THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT
INCOME
SECURITY
ACT OF 1974,
AS AMENDED,
AND/OR
SECTION 4975 OF THE INTERNAL
REVENUE CODE OF
1986,
AS AMENDED (THE
"CODE"),
or by a person using "PLAN
assets" of a Plan,
UNLESS THE PROPOSED
TRANSFEREE
PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL
FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER AND THE SECURITIES
ADMINISTRATOR
AND ON WHICH
THEY
MAY
RELY
WHICH IS
SATISFACTORY
TO THE
TRUSTEE
THAT THE
PURCHASE OF THIS
CERTIFICATE
IS
PERMISSIBLE
UNDER
APPLICABLE
LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
SECTION 4975
OF THE CODE AND WILL
NOT
SUBJECT
THE
MASTER
SERVICER,
THE
TRUSTEE
OR THE
SECURITIES
ADMINISTRATOR
TO ANY
OBLIGATION
OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT.
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.
29
Seller:
EMC, as mortgage
loan seller
under the Mortgage
Loan
Purchase
Agreement.
Senior Certificates: The Class A Certificates.
Senior
Enhancement
Percentage:
As
to
each
Distribution
Date,
the
percentage
equivalent
of a fraction,
the numerator of which is the sum of (i)
the aggregate of the Certificate
Principal Balance of the Class M-1, Class M-2,
Class B-1 and Class B-2 Certificates and (ii) the
Overcollateralization
Amount,
in each case after taking into account the distribution of the
related Principal
Distribution
Amounts on such Distribution Date, and the denominator of which is
the
aggregate
Stated
Principal
Balance
of
the
Mortgage
Loans
for
such
Distribution Date.
Servicer: With respect to each Mortgage Loan, GreenPoint and any
successor
thereto.
Servicer Remittance Date: With respect to each Mortgage Loan, the
date set
forth in the GreenPoint Servicing Agreement.
Servicing
Fee: As to any Mortgage Loan and
Distribution
Date, an amount
equal to the product of (i) the Stated
Principal
Balance of such Mortgage Loan
for the
Distribution
Date
preceding
such
Distribution
Date
and
(ii)
the
applicable Servicing Fee Rate.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as
set forth
in the Mortgage Loan Schedule.
Startup Day: December 30, 2004.
Stated Principal Balance: With respect to any Mortgage Loan or
related REO
Property and any Distribution Date, the Outstanding Principal
Balance thereof as
of the Cut-off Date minus the sum of (i) the principal
portion of the Scheduled
Payments due with respect to such
Mortgage
Loan during each Due Period
ending
prior to such
Distribution
Date (and
irrespective of any delinquency in their
payment),
(ii) all
Principal
Prepayments
with respect to such
Mortgage Loan
received prior to or during the related
Prepayment
Period, and all Liquidation
Proceeds to the extent
applied by the
Servicer as
recoveries
of principal in
accordance
with this
Agreement
or the
GreenPoint
Servicing
Agreement
with
respect to such
Mortgage
Loan,
that were
received by the
Servicer as of the
close of
business
on the last day of the
Prepayment
Period
related
to such
Distribution
Date and (iii) any Realized
Losses on such Mortgage Loan incurred
prior to or during the related
Prepayment
Period. The Stated Principal Balance
of a Liquidated Mortgage Loan equals zero.
Stepdown Date: The earlier to occur of (i) the Distribution
Date on which
the aggregate Certificate Principal Balance of the Class A
Certificates has been
reduced
to zero
and (ii) the
later to occur of (a) the
Distribution
Date in
January
2008
and (b) the
first
Distribution
Date
on
which
the sum of the
aggregate
Certificate
Principal Balance of the Class M-1, Class M-2, Class B-1
and Class B-2 Certificates and the
Overcollateralization
Amount divided by the
Stated
Principal
Balance of the Mortgage Loans for such
Distribution
Date is
greater than or equal to 17.10%.
30
Subordinate
Certificates:
The
Class
M-1
Certificates,
Class
M-2
Certificates,
Class
B-1
Certificates,
Class
B-2
Certificates,
Class
XP
Certificates, Class B-IO Certificates and Residual Certificates.
Subsequent
Recoveries:
As of any
Distribution
Date,
amounts
received
during
the
related
Due
Period by the
Master
Servicer
(net of any
related
expenses permitted to be reimbursed pursuant to Section 4.03) or
surplus amounts
held by the Master
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) in respect of a
Liquidated
Mortgage
Loan or the
disposition
of an REO Property
prior to the
related Prepayment Period that resulted in a Realized Loss, after
liquidation or
disposition of such Mortgage Loan.
Substitute Mortgage Loan: A mortgage loan tendered to the Trustee
pursuant
to the GreenPoint Servicing
Agreement,
the Mortgage Loan Purchase Agreement or
Section 2.04 of this
Agreement,
as applicable,
in each case, (i) which has an
Outstanding
Principal Balance not greater nor materially less than the Mortgage
Loan for which it is to be substituted;
(ii) which has a Mortgage Interest Rate
and Net Rate not less than, and not materially greater than, such
Mortgage Loan;
(iii)
which has a
maturity
date not
materially
earlier
or later
than such
Mortgage Loan and not later than the latest
maturity date of any Mortgage Loan;
(iv) which is of the same
property
type and
occupancy
type as such
Mortgage
Loan;
(v) which has a
Loan-to-Value
Ratio not greater than the
Loan-to-Value
Ratio of such Mortgage
Loan;
(vi) which is current in payment of principal and
interest as of the date of substitution;
(vii) as to which the payment terms do
not vary in any material respect from the payment terms of the
Mortgage Loan for
which it is to be substituted and (viii) which has a Gross Margin,
Periodic Rate
Cap and Maximum Lifetime Mortgage Rate no less than those of such
Mortgage Loan,
has the same
Index
and
interval
between
Interest
Adjustment
Dates as such
Mortgage Loan, and a Minimum
Lifetime
Mortgage Rate no lower than that of such
Mortgage Loan.
Substitution Adjustment Amount: The amount, if any, required to be
paid by
the Seller to the Trustee for deposit in the
Distribution
Account
pursuant to
Section 2.04 in connection with the substitution of a Mortgage
Loan.
Tax Administration
and Tax Matters Person:
The Securities
Administrator
and any successor
thereto or assignee thereof shall serve as tax
administrator
hereunder
and as agent for the Tax
Matters
Person.
The Holder of the largest
percentage
interest
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.
Trigger Event: A Trigger Event exists with respect to a
Distribution
Date
on or after the
Stepdown
Date if either (i) the
related
Rolling
Three-Month
Delinquency Average exceeds 40% of the related Senior Enhancement
Percentage or
(ii) the percentage of the cumulative
amount of Realized Losses on the Mortgage
Loans as of such date of determination is greater than the
applicable percentage
listed below of the aggregate Stated Principal Balances of the
Mortgage Loans as
of the Closing Date:
31
Months
Percentage
37 - 48
1.00%
49 - 60
1.50%
61 - 72
2.00%
73+
2.00%
Trust Fund or Trust:
The corpus of the trust
created by this
Agreement,
consisting
of the
Mortgage
Loans and the other
assets
described
in Section
2.01(a).
Trustee:
JPMorgan
Chase Bank,
N.A., and any successor
thereto,
or any
successor trustee appointed as herein provided.
2004-13 REMIC: Any of REMIC I and REMIC II.
Uncertificated
Accrued
Interest:
With
respect
to any
REMIC I Regular
Interest
for
any
Distribution
Date,
one
month's
interest
at the
related
Uncertificated
Pass-Through
Rate for such
Distribution
Date,
accrued on the
Uncertificated
Principal Balance
immediately prior to such Distribution
Date.
Uncertificated
Accrued Interest for the REMIC I Regular
Interests shall accrue
on the basis of a 360-day year consisting of twelve 30-day months.
For purposes
of calculating
the amount of
Uncertificated
Accrued
Interest for the REMIC I
Regular Interest for any Distribution Date, any Prepayment
Interest
Shortfalls
and Relief Act Shortfalls (to the extent not covered by
Compensating
Interest)
for any
Distribution
Date shall be allocated
among REMIC I Regular
Interests
LT1, LT2, LT3 and LT4, pro rata, based on, and to the extent of,
Uncertificated
Accrued Interest, as calculated without application of this
sentence.
Uncertificated
Pass-Through Rate: The Uncertificated REMIC I Pass-Through
Rate.
Uncertificated
Principal
Balance:
With
respect to each
REMIC
Regular
Interest,
the principal amount of such REMIC Regular Interest outstanding as
of
any date of determination.
As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular
Interest
shall equal the amount set forth in the
Section
5.01
as
its
initial
Uncertificated
Principal
Balance.
On
each
Distribution
Date,
the
Uncertificated
Principal
Balance
of each such REMIC
Regular Interest shall be reduced by all distributions of principal
made on such
REMIC Regular Interest on such Distribution Date pursuant to
Section 5.01 (other
than any distributions
made pursuant to clause (4) of the definition of REMIC I
Distribution
Amount) and shall be further reduced on such
Distribution Date by
Realized
Losses as provided by the definition of REMIC I Realized
Losses.
The
Uncertificated
Principal
Balance of each REMIC Regular Interest shall never be
less than zero.
Uncertificated REMIC I Pass-Through Rate: With respect to any
Distribution
Date and (i) REMIC I Regular
Interests LT1 and LT2, the weighted average of the
Net Rates of the Mortgage Loans, (ii) REMIC I Regular Interest LT3,
zero (0.00%)
and (iii) REMIC I Regular
Interest LT4,
twice the weighted
average of the Net
Rates of the Mortgage Loans.
32
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
to the
GreenPoint
Servicing
Agreement,
without regard to whether or not such policy is maintained.
United
States
Person:
A citizen or
resident
of the United
States,
a
corporation
or
partnership
(including an entity
treated as a corporation
or
partnership
for federal income tax purposes)
created or organized in, or under
the laws of, the United
States or any state thereof or the District of Columbia
(except,
in the case of a partnership,
to the extent provided in regulations),
provided that, for purposes solely of the Class R
Certificates,
no partnership
or other entity
treated as a partnership
for United States
federal income tax
purposes
shall be treated as a United States Person unless all persons that
own
an interest in such
partnership
either
directly or through any entity that is
not a
corporation
for United
States
federal
income tax
purposes are United
States
Persons,
or an estate whose income is subject to United States
federal
income tax
regardless
of its source,
or a trust if a court
within the United
States is able to exercise primary
supervision over the
administration
of the
trust and one or more such United
States
Persons have the authority to control
all substantial
decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury,
which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust
treated as owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of
the Code), and
which was
treated as a United
States
person on August
20,
1996 may elect to
continue to be treated as a United
States person
notwithstanding
the previous
sentence.
Unpaid Realized Loss Amount:
With respect to any Distribution
Date and a
Class of
Offered
Certificates,
is the
excess of (i)
Applied
Realized
Loss
Amounts
allocated to such Class over (ii) the sum of all
distributions to such
Class in
reduction
of such
Applied
Realized
Loss
Amounts
on all
previous
Distribution Dates.
33
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01
Conveyance of Mortgage
Loans to Trustee.
(a)The
Depositor
concurrently with the execution and delivery of this Agreement,
sells, transfers
and assigns to the Trust without
recourse all its right,
title and interest in
and to (i)
the
Mortgage
Loans
identified
in the
applicable
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
Servicer
in
Protected
Accounts,
the
Master
Servicer
in the Master
Servicer
Collection
Account
and the
Trustee in the
Distribution
Account
for the
benefit of the
Trustee
on behalf of the
Certificateholders,
(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 Section
2.03(a),
(vii) the rights with respect to the GreenPoint
Servicing Agreement as assigned
to the Trustee on behalf of the
Certificateholders by the Assignment Agreement,
(viii) such assets as shall from time to time be credited or are
required by the
terms of this Agreement to be credited to the Distribution
Account and (ix) any
proceeds
of the
foregoing.
Although
it is the intent of the
parties to this
Agreement that the conveyance of the
Depositor's
right,
title and interest in
and to the Mortgage
Loans and other
assets in the Trust Fund
pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in
the event that
such
conveyance is deemed to be a loan, it is the intent of the parties
to this
Agreement
that the
Depositor
shall be deemed to have granted to the Trustee a
first priority
perfected
security
interest in all of the
Depositor's
right,
title and interest
in, to and under the Mortgage
Loans and other assets in the
Trust Fund, and that this Agreement shall constitute a security
agreement under
applicable law.
(b) In connection
with the above transfer and
assignment,
the Depositor
hereby deposits with the Trustee or the Custodian, as its agent,
with respect to
(I) each Mortgage Loan (other than a Cooperative Loan):
(i) the original
Mortgage Note,
endorsed
without
recourse to the
order of the Trustee and showing an unbroken chain of endorsements
from the
original payee thereof to the Person
endorsing it to the Trustee,
or lost
note affidavit together with a copy of the related Mortgage Note;
(ii) the original
Mortgage
and, if the related
Mortgage Loan is a
MOM Loan, noting the presence of the MIN and language
indicating that such
Mortgage
Loan is a MOM Loan,
which
shall have been
recorded
(or if the
original
is not
available,
a
copy),
with
evidence
of such
recording
indicated thereon (or if clause (X) in the proviso below applies,
shall be
in recordable form);
34
(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 "JPMorgan Chase Bank, N.A., as Trustee", with evidence of
recording with
respect to each
Mortgage
Loan in the name of the
Trustee
thereon (or if
clause (X) in the proviso below applies or for Mortgage
Loans with respect
to which the
related
Mortgaged
Property is located in a state other than
Maryland, Tennessee, South Carolina, Mississippi and Florida, 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;
(vii) originals of all
modification
agreements,
if applicable and
available;
and (II) with respect to each Cooperative Loan so assigned:
(viii) 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;
(ix)
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;
(x)
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;
(xi)
the
original
recognition
agreement
by the
Cooperative
of the
interests of the mortgagee with respect to the related Cooperative
Loan;
(xii) the Security Agreement;
(xiii)
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
(xiv)
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
(xv) an
executed
assignment
of the
interest
of the
originator
in the
Security
Agreement,
Assignment
of
Proprietary
Lease
and
the
recognition
agreement
referenced in clause (iv) above,
showing an unbroken
chain of title
from the originator to the Trustee; and
(xvi) the original of each modification,
assumption agreement or
preferred loan agreement, if any, relating to such Cooperative
Loan;
provided,
however, that in lieu of the foregoing, the Depositor may deliver
the
following documents, under the circumstances set forth below: (X)
in lieu of the
original
Security
Instrument,
assignments
to
the
Trustee
or
intervening
assignments thereof which have been delivered, are being delivered
or will, upon
receipt of recording information relating to the Security
Instrument required to
be included
thereon,
be delivered to recording
offices for recording and have
not been returned to the Depositor in time to permit their delivery
as specified
above, the Depositor may deliver a true copy thereof with a
certification by the
Depositor, on the face of such copy, substantially as follows:
"Certified to be
a true
and
correct
copy of the
original,
which
has
been
transmitted
for
recording"; (Y) in lieu of the Security Instrument, assignment to
the Trustee or
intervening
assignments
thereof,
if the applicable
jurisdiction
retains the
originals of such documents (as evidenced by a certification
from the Depositor
to such
effect)
the
Depositor
may
deliver
photocopies
of
such
documents
containing
an original
certification
by the
judicial
or other
governmental
authority of the
jurisdiction
where such documents were recorded;
and (Z) the
Depositor shall not be required to deliver
intervening
assignments or Mortgage
Note
endorsements
between the related
underlying seller of the Mortgage Loans
and EMC,
between
EMC and the
Depositor,
and between
the
Depositor
and the
Trustee;
and provided,
further,
however,
that in the case of Mortgage
Loans
which have been
prepaid in full after the Cut-off Date and prior to the Closing
Date, the Depositor,
in lieu of delivering the above documents,
may deliver to
the Trustee or the Custodian,
as its agent, a certification
to such effect and
shall deposit all amounts paid in respect of such
Mortgage
Loans in the Master
Servicer
Collection
Account on the Closing Date.
The Depositor
shall deliver
such original documents
(including any original documents as to which certified
copies had previously
been
delivered) to the Trustee or the Custodian,
as its
agent,
promptly
after they are
received.
The Depositor
shall cause,
at its
expense, the assignment of the Security Instrument to the Trustee
to be recorded
not later than 180 days after the Closing
Date unless such (a)
recordation
is
not required by the Rating
Agencies or an Opinion of Counsel has been
provided
to the Trustee (with a copy to the Custodian)
which states that
recordation of
such
Security
Instrument
is not
required
to protect
the
interests
of the
Certificateholders
in the related
Mortgage
Loans or (b) MERS is identified on
the
Mortgage
or on a
properly
recorded
assignment
of the
Mortgage
as the
mortgagee
of record
solely as nominee
for
Depositor
and its
successor
and
assigns;
provided,
however,
that
each
assignment
shall
be
submitted
for
recording by the Depositor in the manner
described
above, at no expense to the
Trust or the Trustee or the Custodian,
as its agent, upon the earliest to occur
of:
(i)
reasonable
direction
by
the
Holders
of
Certificates
evidencing
Fractional Undivided Interests
aggregating not less than 25% of the Trust, (ii)
the
occurrence
of an Event of Default,
(iii) the
occurrence of a bankruptcy,
insolvency or foreclosure relating to the Depositor and (iv) the
occurrence of a
servicing
transfer as described in Section
8.02
hereof.
Notwithstanding
the
foregoing,
if the Depositor fails to pay the cost of recording the
assignments,
such expense will be paid by the Trustee and the Trustee shall be
reimbursed for
such expenses by the Trust in accordance with Section 9.05.
35
Section
2.02
Acceptance
of Mortgage
Loans by Trustee.
(a)The
Trustee
acknowledges
the
sale,
transfer
and
assignment
of the
Trust
to it by the
Depositor and receipt of, subject to further review and the
exceptions which may
be noted pursuant to the procedures described below, and declares
that it holds,
the documents (or certified copies thereof)
delivered to it pursuant to Section
2.01,
and
declares
that it will
continue
to hold
those
documents
and any
amendments,
replacements
or
supplements
thereto and all other
assets of the
Trust Fund
delivered
to it as Trustee in trust for the use and
benefit of all
present
and future
Holders
of the
Certificates.
On the
Closing
Date,
the
Custodian, with respect to the Mortgage Loans, shall acknowledge
with respect to
each Mortgage Loan by 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
Certificateholders,
to review or cause to be reviewed by the
Custodian
on its
behalf (under the Custodial
Agreement),
each Mortgage File delivered to it and
to execute and deliver, or cause to be executed and delivered,
to the Depositor
and the Trustee an Interim Certification. In conducting such
review, the Trustee
or Custodian
will ascertain
whether all required
documents have been executed
and received,
and based on the Mortgage Loan Schedule,
whether those documents
relate,
determined
on the
basis of the
Mortgagor
name,
original
principal
balance and loan number, to the Mortgage Loans it has received, as
identified in
the Mortgage Loan Schedule.
In performing
any such review,
the Trustee or the
Custodian,
as its agent, may
conclusively
rely on the purported due execution
and
genuineness
of any such document and on the purported
genuineness
of any
signature
thereon.
If the Trustee or the
Custodian,
as its agent,
finds any
document
constituting
part of the Mortgage
File not to have been
executed or
received,
or to be unrelated to the Mortgage Loans
identified in Exhibit B, or
to appear to be
defective
on its face,
the Trustee or the
Custodian,
as its
agent,
shall promptly
notify the Seller.
In accordance with the Mortgage Loan
Purchase
Agreement,
the Seller
shall
correct or cure any such defect
within
ninety 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 Certificateholders in the related Mortgage Loan,
the Trustee or
the Custodian,
as its agent, shall enforce the Seller's
obligation pursuant to
the Mortgage
Loan Purchase
Agreement
within 90 days from the Trustee's or the
Custodian's
notification,
to purchase
such
Mortgage
Loan at the
Repurchase
Price;
provided
that, if such defect would cause the Mortgage Loan to be other
than a "qualified
mortgage" as defined in Section
860G(a)(3) of the Code,
any
such cure or repurchase
must occur within 90 days from the date such breach was
discovered;
provided,
however,
that
if such
defect
relates
solely
to the
inability
of
the
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.
36
(b) No later than 180 days after the Closing
Date (or with respect to any
Substitute
Mortgage
Loan,
within five
Business Days after the receipt by the
Trustee or the Custodian thereof),
the Trustee or the Custodian,
as its agent,
will
review,
for the benefit of the
Certificateholders,
the
Mortgage
Files
delivered
to it and will
execute
and
deliver
or cause
to be
executed
and
delivered to the Depositor and the Trustee a Final Certification.
In conducting
such review, the Trustee or the Custodian,
as its agent, will ascertain whether
an original of each document
required to be recorded has been returned from the
recording office with evidence of recording thereon or a certified
copy has been
obtained
from the recording
office.
If the Trustee or the
Custodian,
as its
agent,
finds any document
constituting
part of the Mortgage File has not been
received,
or to be unrelated,
determined
on 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
(provided,
however, that with respect to those documents described in Sections
2.01(b)(iv),
(v) and (vii),
the
Trustee's
obligations
shall extend only to the
documents
actually delivered
pursuant to such Sections).
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
Certificateholders
in the related
Mortgage
Loan,
the
Trustee
shall
enforce the Seller's
obligation
under the Mortgage Loan Purchase
Agreement to
provide a Substitute
Mortgage Loan (if within two years of the Closing Date) or
purchase such Mortgage Loan at the Repurchase Price; provided,
however, 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,
further,
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.
37
(c) In the event that a Mortgage
Loan is purchased by the Seller in
accordance
with
Sections
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
Trustee
written
notification
detailing the components of the Repurchase Price. Upon deposit of
the Repurchase
Price in the Master Servicer Collection Account,
the Depositor shall notify the
Trustee
and the
Trustee
or the
Custodian,
as its agent
(upon
receipt of a
Request
for Release in the form of Exhibit D attached
hereto
with
respect to
such Mortgage Loan),
shall release to the 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
available
funds is received by the
Trustee.
The Trustee
shall amend the Mortgage Loan Schedule,
which was previously delivered to it by
the
Depositor in a form agreed to between the
Depositor
and the
Trustee,
to
reflect such
repurchase and shall promptly
notify the Rating
Agencies and the
Master
Servicer of such
amendment.
The obligation of the Seller to repurchase
any Mortgage
Loan as to which such a defect in a
constituent
document
exists
shall
be
the
sole
remedy
respecting
such
defect
available
to
the
Certificateholders or to the Trustee on their behalf.
Section
2.03
Assignment
of
Interest
in
the
Mortgage
Loan
Purchase
Agreement.
(a)The
Depositor
hereby
assigns to the Trustee,
on behalf of the
Certificateholders,
all of its right,
title and interest in the Mortgage
Loan
Purchase
Agreement,
including
but
not
limited
to
Depositor's
rights
and
obligations
pursuant to the
GreenPoint
Servicing
Agreement
(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 Mortgage
Loans of the
Servicer
under the
GreenPoint
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 Certificateholders' sole remedy for any breach
thereof. At the
request
of the
Trustee,
the
Depositor
shall
take
such
actions
as may be
necessary
to
enforce
the above
right,
title and
interest
on behalf of the
Trustee and the
Certificateholders
or shall execute such further
documents as
the Trustee may
reasonably
require in order to enable the Trustee to carry out
such enforcement.
(b) If the
Depositor,
the Master
Servicer
or the
Trustee
discovers a
breach of any of the
representations
and
warranties set forth in the Mortgage
Loan Purchase Agreement, which breach materially and adversely
affects the value
of the interests of
Certificateholders
or the Trustee in the related
Mortgage
Loan, the party
discovering
the breach shall give prompt written notice of the
breach to the other
parties.
The 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,
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.
The
Depositor
shall
notify the
Trustee and submit to the
Trustee or the Custodian,
as its agent, a Request for Release,
and the Trustee
shall
release,
or the Trustee
shall cause the
Custodian
to release,
to the
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
Securities
Administrator 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.
38
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 the Mortgage Loan
Purchase Agreement
or this Agreement, as applicable;
provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or this Section 2.04, as
applicable,
in
lieu of purchase
shall not be permitted
after the
termination of the two-year
period beginning on the Startup Day; provided, further, that if the
breach would
cause the Mortgage
Loan to be other than a
"qualified
mortgage" as defined in
Section
860G(a)(3) of the Code, any such cure or substitution must occur
within
90 days from the date the breach was
discovered.
The Trustee or the Custodian,
as its agent,
shall examine the Mortgage File for any Substitute
Mortgage Loan
in the manner set forth in Section 2.02(a) and the Trustee or the
Custodian,
as
its agent, shall notify the Seller, in writing,
within five Business Days after
receipt,
whether or not the documents relating to the Substitute
Mortgage Loan
satisfy the requirements of the fourth sentence of Section
2.02(a).
Within two
Business Days after such
notification,
the Seller shall provide to the Trustee
for
deposit
in the
Distribution
Account
the
amount,
if any,
by which the
Outstanding
Principal Balance as of the next preceding Due Date of the Mortgage
Loan for which
substitution
is being made,
after
giving
effect to 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 Trustee or Custodian of a Request for
Release for such
Mortgage
Loan),
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 the documents
related to the
Substitute
Mortgage
Loan in accordance
with the
provisions of the Mortgage Loan Purchase
Agreement or Sections 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
such
Sections.
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.
39
Section
2.05
Issuance
of
Certificates.
The Trustee
acknowledges
the
assignment to it of the Mortgage Loans and the other assets
comprising the Trust
Fund and, concurrently therewith, has signed, and countersigned and
delivered to
the
Depositor,
in
exchange
therefor,
Certificates
in
such
authorized
denominations
representing such Fractional Undivided Interests as the Depositor
has requested.
The Trustee agrees that it will hold the Mortgage Loans and such
other assets as may from time to time be delivered to it segregated
on the books
of the Trustee in trust for the benefit of the Certificateholders.
The Depositor,
concurrently with the execution and delivery hereof,
does
hereby transfer,
assign,
set over and otherwise convey in trust to the Trustee
without
recourse all the right,
title and interest of the
Depositor in and to
the REMIC I Regular
Interests
and the other assets of REMIC II for the benefit
of the holders of the REMIC II Certificates. The Trustee
acknowledges receipt of
the REMIC I Regular Interests (which are uncertificated) and the
other assets of
REMIC II and
declares
that it holds
and will
hold the same in trust
for the
exclusive use and benefit of the holders of the REMIC II
Certificates.
40
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:
(1) the
Depositor
(a) is a
corporation
duly
organized,
validly
existing and in good standing
under the laws of the State of Delaware and
(b) is
qualified
and in good
standing
as a foreign
corporation
to do
business
in each
jurisdiction
where such
qualification
is
necessary,
except where the failure so to qualify would not reasonably be
expected to
have a material
adverse effect on the
Depositor's
business as presently
conducted or on the
Depositor's
ability to enter into this Agreement and
to consummate the transactions contemplated hereby;
(2) 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;
(3) 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;
(4) 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;
(5) 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);
(6) 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
41
(7) 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.
42
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Master
Servicer.
(a) The Master
Servicer shall
supervise,
monitor and oversee the obligation of the Servicer to service and
administer the
Mortgage
Loans
in
accordance
with
the
terms
of the
GreenPoint
Servicing
Agreement and shall have full power and authority to do any and all
things which
it may deem necessary or desirable in connection with such master
servicing and
administration.
In performing its
obligations
hereunder,
the Master Servicer
shall act in a manner
consistent
with
Accepted
Master
Servicing
Practices.
Furthermore,
the Master Servicer shall oversee and consult with the 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 the
Servicer
and shall
cause the
Servicer to perform and observe the covenants,
obligations and conditions to be
performed or observed by the Servicer under the GreenPoint
Servicing Agreement.
The Master Servicer shall
independently
and separately
monitor the Servicer's
servicing
activities with respect to each Mortgage Loan,
reconcile the results
of such monitoring with such information
provided in the previous sentence on a
monthly basis and coordinate corrective adjustments to the
Servicer's and Master
Servicer's records, and based on such reconciled and corrected
information,
the
Master Servicer shall provide such
information to the Securities
Administrator
as shall be
necessary
in order for it to prepare the
statements
specified in
Section 6.04, and prepare any other
information
and statements
required to be
forwarded by the Master Servicer hereunder.
The Master Servicer shall reconcile
the results of its Mortgage Loan monitoring
with the actual
remittances of the
Servicer
to
the
Protected
Account
pursuant
to
the
GreenPoint
Servicing
Agreement.
(b) The Trustee
shall
furnish the Servicer and the Master
Servicer with
any powers of attorney,
in substantially the form attached hereto as Exhibit K,
and other documents in form as provided to it necessary or
appropriate to enable
the
Servicer
and the Master
Servicer to service and
administer
the Mortgage
Loans and REO Property.
(c) The Trustee shall provide access to the records and
documentation
in
possession of the Trustee
regarding the Mortgage Loans and REO Property and the
servicing
thereof
to the
Certificateholders,
the FDIC,
and the
supervisory
agents
and
examiners
of the
FDIC,
such
access
being
afforded
only
upon
reasonable
prior written request and during normal business hours at the
office
of the Trustee;
provided,
however, that, unless otherwise required by law, the
Trustee
shall
not
be
required
to
provide
access
to
such
records
and
documentation if the provision
thereof would violate the legal right to privacy
of any Mortgagor.
The Trustee shall allow representatives of the above entities
to photocopy any of the records and
documentation
and shall provide
equipment
for that purpose at a charge that covers the Trustee's actual
costs.
(d) The Trustee
shall
execute and deliver to the 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.
43
Section 3.02
REMIC-Related
Covenants.
For as long as each 2004-13 REMIC
shall
exist,
the
Trustee
and
the
Securities
Administrator
shall
act
in
accordance
herewith to assure
continuing
treatment of such 2004-13 REMIC as a
REMIC,
and the Trustee and the Securities
Administrator
shall comply with any
directions of the Depositor,
the 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 prepared at the expense of the Trust; and (b) other than
with respect to
a substitution
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04
or contributions
pursuant to Section 4.08(c) and 4.09(c) of this Agreement,
as
