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<PAGE>
EXHIBIT 4.1
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor,
CENDANT MORTGAGE CORPORATION
Servicer,
and
WELLS FARGO BANK, N.A.
Trustee
---------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2004
---------------------------
MERRILL LYNCH MORTGAGE INVESTORS TRUST SERIES MLCC 2004-G
MORTGAGE PASS-THROUGH CERTIFICATES
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TABLE OF CONTENTS
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ARTICLE I.
DEFINITIONS................................................ 6
Section 1.01. Definitions......................................
6
Section 1.02. Calculations Respecting Mortgage Loans...........
36
ARTICLE II. DECLARATION OF TRUST; ISSUANCE OF
CERTIFICATES........... 36
Section 2.01. Creation and Declaration of Trust Fund;
Conveyance of Mortgage Loans..................... 36
Section 2.02. Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund..................... 38
Section 2.03. Representations and Warranties of the
Depositor
and the Servicer................................. 39
Section 2.04. Discovery of Breach; Repurchase or
Substitution
of Mortgage Loans................................ 44
Section 2.05. Grant Clause.....................................
47
ARTICLE III. THE
CERTIFICATES......................................... 48
Section 3.01. The Certificates.................................
48
Section 3.02. Registration.....................................
48
Section 3.03. Transfer and Exchange of Certificates............
49
Section 3.04. Cancellation of Certificates.....................
52
Section 3.05. Replacement of Certificates......................
52
Section 3.06. Persons Deemed Owners............................
53
Section 3.07. Temporary Certificates...........................
53
Section 3.08. Appointment of Paying Agent......................
53
Section 3.09. Book-Entry Certificates..........................
54
ARTICLE IV. ADMINISTRATION OF THE TRUST
FUND.......................... 55
Section 4.01. Custodial Accounts; Distribution Account.........
55
Section 4.02. Reports to Trustee and Certificateholders........
56
ARTICLE V. DISTRIBUTIONS TO HOLDERS OF
CERTIFICATES................... 59
Section 5.01. Distributions Generally..........................
59
Section 5.02. Distributions from the Distribution Account......
59
Section 5.03. Allocation of Losses.............................
63
Section 5.04. Advances.........................................
63
ARTICLE VI. CONCERNING THE TRUSTEE; EVENTS OF
DEFAULT................. 64
Section 6.01. Duties of Trustee................................
64
Section 6.02. Certain Matters Affecting the Trustee............
66
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Section 6.03. Trustee Not Liable for Certificates..............
67
Section 6.04. Trustee May Own Certificates.....................
68
Section 6.05. Eligibility Requirements for Trustee.............
68
Section 6.06. Resignation and Removal of Trustee...............
68
Section 6.07. Successor Trustee................................
69
Section 6.08. Merger or Consolidation of Trustee...............
69
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian........................................ 70
Section 6.10. Authenticating Agents............................
71
Section 6.11. Indemnification of Trustee.......................
72
Section 6.12. Fees and Expenses of the Trustee.................
72
Section 6.13. Collection of Monies.............................
73
Section 6.14. Events of Default; Trustee To Act; Appointment
of Successor..................................... 73
Section 6.15. Additional Remedies of Trustee Upon Event of
Default.......................................... 75
Section 6.16. Waiver of Defaults...............................
75
Section 6.17. Notification to Holders..........................
75
Section 6.18. Directions by Certificateholders and Duties of
Trustee During Event of Default.................. 76
Section 6.19. Preparation of Tax Returns and Other Reports.....
76
Section 6.20. Annual Certificate by Trustee....................
77
ARTICLE VII. PURCHASE OF MORTGAGE LOANS AND TERMINATION OF
THE
TRUST FUND............................................... 77
Section 7.01. Purchase of Mortgage Loans; Termination of
Trust Fund Upon Purchase or Liquidation of All
Mortgage Loans................................... 77
Section 7.02. Procedure Upon Termination of Trust Fund.........
78
Section 7.03. Additional Trust Fund Termination Requirements...
79
ARTICLE VIII. RIGHTS OF
CERTIFICATEHOLDERS............................ 80
Section 8.01. Limitation on Rights of Holders..................
80
Section 8.02. Access to List of Holders........................
80
Section 8.03. Acts of Holders of Certificates..................
81
ARTICLE IX. ADMINISTRATION AND SERVICING OF THE MORTGAGE
LOANS........ 82
Section 9.01. Servicer to Act as Servicer......................
82
Section 9.02. Title, Management and Disposition of REO
Property......................................... 83
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Section 9.03. Trustee and Depositor's Right to Examine
Servicer Records................................. 84
Section 9.04. Legal Proceedings Involving the Servicer
and/or
the Mortgage Loans............................... 85
Section 9.05. Material Changes.................................
85
Section 9.06. Servicer Shall Provide Information as
Reasonably Required.............................. 86
Section 9.07. Servicer Not to Resign...........................
86
Section 9.08. Custodial Accounts and Escrow Accounts...........
86
Section 9.09. Assumption Processing............................
86
Section 9.10. Books and Records................................
87
Section 9.11. Annual Statement as to Compliance................
87
Section 9.12. Annual Independent Certified Public
Accountants' Servicing Reports................... 87
Section 9.13. Officer's Certificate............................
87
Section 9.14. Servicing Compensation...........................
88
Section 9.15. Indemnification..................................
88
Section 9.16. Non Solicitation.................................
89
Section 9.17. Successor to the Servicer........................
89
Section 9.18. Statements to the Trustee........................
90
Section 9.19. Merger or Consolidation of the Servicer..........
90
Section 9.20. Limitation on Liability of the Servicer..........
90
ARTICLE X. REMIC
ADMINISTRATION....................................... 91
Section 10.01. REMIC Administration.............................
91
Section 10.02. Prohibited Transactions and Activities...........
93
Section 10.03. Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status............. 94
Section 10.04. REO Property.....................................
94
ARTICLE XI. MISCELLANEOUS
PROVISIONS.................................. 95
Section 11.01. Binding Nature of Agreement; Assignment..........
95
Section 11.02. Entire Agreement.................................
95
Section 11.03. Amendment........................................
95
Section 11.04. Voting Rights....................................
96
Section 11.05. Provision of Information.........................
96
Section 11.06. Governing Law....................................
97
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Section 11.07. Notices..........................................
97
Section 11.08. Severability of Provisions.......................
98
Section 11.09. Indulgences; No Waivers..........................
98
Section 11.10. Headings Not To Affect Interpretation............
98
Section 11.11. Benefits of Agreement............................
98
Section 11.12. Special Notices to the Rating Agencies...........
98
Section 11.13. [RESERVED].......................................
99
Section 11.14. Counterparts.....................................
99
Section 11.15. No Petitions.....................................
99
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This POOLING AND SERVICING AGREEMENT, dated as of December 1,
2004 (the
"Agreement"), by and among MERRILL LYNCH MORTGAGE INVESTORS,
INC., a Delaware
corporation, as depositor (the "Depositor"), CENDANT MORTGAGE
CORPORATION, a New
Jersey corporation, as servicer (the "Servicer") and WELLS FARGO
BANK, N.A., as
Trustee (the "Trustee"), and acknowledged by MERRILL LYNCH
CREDIT CORPORATION a
Delaware corporation, as seller (the "Seller"), for purposes of
Section 2.04.
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller
and at the
Closing Date is the owner of the Mortgage Loans and the other
property being
conveyed by the Depositor to the Trustee hereunder for inclusion
in the Trust
Fund. On the Closing Date, the Depositor will acquire the
Certificates from the
Trustee as consideration for the Depositor's transfer to the
Trust Fund of the
Mortgage Loans and the other property constituting the Trust
Fund. The Depositor
has duly authorized the execution and delivery of this Agreement
to provide for
the conveyance to the Trustee of the Mortgage Loans and the
other property
constituting the Trust Fund. All covenants and agreements made
by the Seller in
the Mortgage Loan Purchase and Sale Agreement and in this
Agreement and all
covenants and agreements made by the Depositor, the Servicer and
the Trustee
herein with respect to the Mortgage Loans and the other property
constituting
the Trust Fund are for the benefit of the Holders from time to
time of the
Certificates. The Depositor, the Servicer and the Trustee are
entering into this
Agreement, and the Trustee is accepting the Trust Fund created
hereby, for good
and valuable consideration, the receipt and sufficiency of which
are hereby
acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund
be treated
for federal income tax purposes as comprising three real estate
mortgage
investment conduits (each a "REMIC" or, in the alternative,
"REMIC 1," "REMIC 2"
and the "Upper Tier REMIC," respectively) in a tiered structure.
The
Certificates, other than the Class A-R Certificate, shall
represent ownership of
regular interests in the Upper Tier REMIC. For federal income
tax purposes, in
addition to representing ownership of a REMIC regular interest,
(i) each of the
Class A-1 and Class A-2 Certificates represents the right to
receive payments in
respect of Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls, and (ii) each
of the Class B-1, Class B-2 and Class B-3 Certificates
represents the right to
receive payments in respect of Basis Risk Shortfalls and Unpaid
Basis Risk
Shortfalls as provided in Section 5.02. For federal income tax
purposes, (i)
each Class X-A Certificate will represent two REMIC regular
interests and the
obligation to make certain non-REMIC payments to the holders of
the Class A-1
and Class A-2 Certificates and (ii) each Class X-B Certificate
will represent
three REMIC regular interests and the obligation to make certain
non-REMIC
payments to the holders of the Class B-1, Class B-2 and Class
B-3 Certificates
in respect of Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls. The Class
A-R Certificate represents the sole class of residual interest
in each of REMIC
1, REMIC 2 and the Upper Tier REMIC.
The Upper Tier REMIC shall hold as its assets the several
classes of
uncertificated REMIC 2 Regular Interests. REMIC 2 shall hold as
its assets the
several uncertificated classes of REMIC 1 Regular Interests.
REMIC 1 shall hold
as its assets the property of the Trust Fund other than the
REMIC 1 Interests,
the REMIC 2 Interests and the interests in the grantor trusts
described herein.
Each Upper Tier REMIC Regular Interest is hereby designated as a
regular
interest in the Upper Tier REMIC for purposes of the REMIC
Provisions. Each
REMIC 2 Regular Interest is
1
<PAGE>
hereby designated as a regular interest in REMIC 2 for purposes
of the REMIC
provisions. Each REMIC 1 Regular Interest is hereby designated
as a regular
interest in REMIC 1 for purposes of the REMIC Provisions.
The Class LT1-R Interest is hereby designated as the sole class
of
residual interest in REMIC 1 for purposes of the REMIC
Provisions. The Class
LT2-R Interest is hereby designated as the sole class of
residual interest in
REMIC 2 for purposes of the REMIC provisions. The Class A-R
Certificate, other
than the portion thereof representing the right to receive
payments in respect
of the Class LT1-R Interest or the Class LT2-R Interest is
hereby designated as
the sole class of residual interest in the Upper Tier REMIC for
purposes of the
REMIC provisions and will also represent the Class LT1-R
Interest and the Class
LT2-R Interest.
THE REMIC 1 INTERESTS
The following table sets forth (or describes) the class
designation,
interest rate, initial principal amount, and related pool of
Mortgage Loans for
each class of REMIC 1 Interests:
<TABLE>
<CAPTION>
Interest Related Mortgage Pool
Class Designation Principal Amount Rate or Pools
----------------- ---------------- --------
---------------------
<S> <C> <C> <C>
LT11A 98,078.8195 (2) Pool 1
LT11B 3,163,759.8195 (3) Pool 1
LT12A 52,287.1618 (2) Pool 2
LT12B 1,686,247.1618 (4) Pool 2
LT1Z 480,000,325.1674 (2) Pool 1 and Pool 2
LT1-R (1) (1) N/A
</TABLE>
-----------------------
(1) The Class LT1-R Interest represents the sole class of
residual interest in
REMIC 1 and has neither a principal amount nor an interest rate.
The Class
LT1-R Interest shall be represented by the Class A-R
Certificate.
(2) The Class LT11A Interest, the Class LT12A Interest, and the
Class LT1Z
Interest shall have an interest rate for each Distribution Date
(and the
related Accrual Period) equal to the Net WAC.
(3) The Class LT11B Interest shall have an interest rate for any
Distribution
Date (and the related Accrual Period) equal to the Pool 1 Net
WAC.
(4) The Class LT12B Interest shall have an interest rate for any
Distribution
Date (and the related Accrual Period) equal to the Pool 2 Net
WAC.
On each Distribution Date, the Trustee shall first pay or charge
as an
expense of REMIC 1 all expenses of the Trust for such
Distribution Date.
Principal distributions shall be deemed to be made on the REMIC
1
Interests first, so as to keep the uncertificated principal
balance of each
REMIC 1 Interest ending with the designation "A" equal to 1% of
the excess of
(x) the aggregate Principal Balance of the Mortgage Loans in the
related
Mortgage Pool over (y) the aggregate class principal amounts of
the Certificates
in the Certificate Group related to such Mortgage Pool (except
that if 1% of any
such excess is greater than the principal amount of the
corresponding REMIC 1
Interest ending with the designation "A", the least amount of
principal shall be
distributed to such REMIC 1 Interests such that the REMIC 1
Subordinated Balance
Ratio is maintained); second, to each REMIC 1 Interest ending
with the
designation "B" so as to keep the uncertificated principal
balance of each such
REMIC 1 Interest equal to 1% of the aggregate Principal Balance
of the Mortgage
Loans in the related
2
<PAGE>
Mortgage Pool and finally, all remaining principal amounts shall
be distributed
in respect of the Class LT1Z Interest. Realized Losses with
respect to principal
shall be allocated among the REMIC 1 Interests first, so as to
keep the
uncertificated principal balance of each REMIC 1 Interest ending
with the
designation "A" equal to 1% of the excess of (x) the aggregate
Principal Balance
of the Mortgage Loans in the related Mortgage Pool over (y) the
aggregate class
principal amounts of the Certificates in the Certificate Group
related to such
Mortgage Pool (except that if 1% of any such excess is greater
than the
principal amount of the corresponding REMIC 1 Interest ending
with the
designation "A", the least amount of losses shall be allocated
to such REMIC 1
Interests such that the REMIC 1 Subordinated Balance Ratio is
maintained);
second, to each REMIC 1 Interest ending with the designation "B"
so as to keep
the uncertificated principal balance of each such REMIC 1
Interest equal to 1%
of the aggregate Principal Balance of the Mortgage Loans in the
related Mortgage
Pool and finally, all remaining Realized Losses with respect to
principal shall
be distributed in respect of the Class LT1Z Interest.
If on any Distribution Date the Certificate Principal Amount of
any Class
of Certificates is increased pursuant to the penultimate
sentence of the
definition of "Certificate Principal Amount", then there shall
be an equivalent
aggregate increase in the principal amounts of the REMIC 1
Regular Interests,
with such increase allocated (before the making of distributions
and the
allocation of losses on the REMIC 1 Regular Interests on such
Distribution Date)
among the REMIC 1 Regular Interests as follows: (i) first, to
each REMIC 1
Interest ending with the designation "B" so as to keep the
uncertificated
principal balance of each such REMIC 1 Interest equal to 1% of
the aggregate
Principal Balance of the Mortgage Loans in the related Mortgage
Pool, (ii)
second, to each REMIC 1 Regular Interest ending with the
designation "A", so
that the uncertificated principal balance of each REMIC 1
Regular Interest
ending with the designation "A" is as close as possible to (but
does not exceed)
1% of the excess of (x) the aggregate Principal Balance of the
Mortgage Loans in
related Mortgage Pool over (y) the aggregate class principal
balance of the
Certificates in the Certificate Group related to such Mortgage
Pool; provided,
however, that (a) the REMIC 1 Subordinated Balance Ratio is
maintained and (b)
amounts allocated to any REMIC 1 Regular Interest pursuant to
this clause (ii)
shall not exceed the amount of any previous realized losses
allocated to such
REMIC 1 Regular Interest not previously offset by distributions
or increases in
the principal amount of such REMIC 1 Regular Interest and (iii)
finally, all
remaining amounts to the Class LT1Z Interest.
All computations with respect to the REMIC 1 Interests shall be
computed
to eight decimal places.
THE REMIC 2 INTERESTS
The following table sets forth (or describes) the class
designation,
interest rate, initial principal amount, and corresponding class
of certificates
or components for each class of REMIC 2 Interests:
<TABLE>
<CAPTION>
Interest Corresponding Class of
Class Designation Principal Amount Rate Certificates or
Components
----------------- ---------------- ----
--------------------------
<S> <C> <C> <C>
LT2A1 $306,568,000.00 (2) Class A-1, X-A1 Component
LT2A2 $163,396,000.00 (3) Class A-2, X-A2 Component
LT2B1 $ 5,092,000.00 (4) Class B-1, Component XB1
LT2B2 $ 3,880,000.00 (4) Class B-2, Component XB2
LT2B3 $ 2,182,000.00 (4) Class B-3, Component XB3
LT2B4 $ 1,212,000.00 (4) Class B-4
</TABLE>
3
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<TABLE>
<CAPTION>
Interest Corresponding Class of
Class Designation Principal Amount Rate Certificates or
Components
----------------- ---------------- ----
--------------------------
<S> <C> <C> <C>
LT2B5 $ 970,000.00 (4) Class B-5
LT2B6 $ 1,700,598.13 (4) Class B-6
LT2AR $ 100.00 (2) Class A-R
LT2-R (1) (1) N/A
</TABLE>
----------------------
(1) The Class LT2-R Interest represents the sole class of
residual interest in
REMIC 2 and has neither a principal amount nor an interest rate.
The Class
LT2-R Interest shall be represented by the Class A-R
Certificate.
(2) The Class LT2A1 and Class LT2AR Interests shall have an
interest rate for
each Distribution Date (and the related Accrual Period) equal to
the Pool 1
Net WAC.
(3) The Class LT2A2 Interest shall have an interest rate for
each Distribution
Date (and the related Accrual Period) equal to the Pool 2 Net
WAC.
(4) Each of the Class LT2B1 Interest, the Class LT2B2 Interest,
the Class LT2B3
Interest, the Class LT2B4 Interest, the Class LT2B5 Interest and
the Class
LT2B6 Interest shall have an interest rate for each Distribution
Date (and
the related Accrual Period) equal to the Subordinate Net WAC
which is the
numerical equivalent of the weighted average of the interest
rates on the
Class LT11A Interest and the Class LT12A Interest (treating, for
purposes of
computing this weighted average, the Class LT11A Interest as
subject to a
cap and a floor equal to the interest rate on the Class LT11B
Interest and
the Class LT12A Interest as subject to a cap and a floor equal
to the
interest rate on the Class LT12B Interest).
Principal payments shall be deemed made and Realized Losses with
respect
to principal shall be allocated among the REMIC 2 Interests in
the same manner
as such payments are made or such Realized Losses are allocated
among the
Corresponding Classes of Certificates (treating the initial
Class Principal
Amount of the Class B-6 Certificates, for purposes of this
sentence, as being
$1,700,598.13, treating the first $0.13 of distributions to the
Class A-R
Certificate under Section 5.02(a)(vi) from principal payments on
the Mortgage
Loans as distributed to the Class B-6 Certificates and
disregarding Section
5.03(c)).
The principal amount of each REMIC 2 Regular Interest shall be
increased
on any Distribution Date on which, and in the amount by which,
the Certificate
Principal Amount of any Corresponding Class of Certificates is
increased
pursuant to the penultimate sentence of "Certificate Principal
Amount."
THE CERTIFICATES
The following table sets forth (or describes) the Class
designation,
Certificate Interest Rate, initial Class Principal Amount (or
initial Class
Notional Amount), and minimum denomination for each Class of
Certificates
comprising interests in the Trust Fund created hereunder.
<TABLE>
<CAPTION>
Related Class or
Classes of interests Initial Class
Class in the Upper Tier Certificate Principal Amount or Minimum
Denominations
Designation REMIC Interest Rate Class Notional Amount or
Percentage Interest
----------- ------------------ -------------
--------------------- ----------------------
<S> <C> <C> <C> <C>
Upper Tier REMIC (1) $306,568,000 $ 25,000.00
Class A-1 Class A-1 Interest
Class A-2 Upper Tier REMIC (2) $163,396,000 $ 25,000.00
Class A-2 Interest
</TABLE>
4
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<TABLE>
<CAPTION>
Related Class or
Classes of interests Initial Class
Class in the Upper Tier Certificate Principal Amount or Minimum
Denominations
Designation REMIC Interest Rate Class Notional Amount or
Percentage Interest
----------- ------------------ -------------
--------------------- ----------------------
<S> <C> <C> <C> <C>
Class X-A X-A1 Component, (3) (3) $ 25,000.00
X-A2 Component,
Class X-B Component XB1, (4) (4) $ 25,000.00
Component XB2 and
Component XB3
Class A-R Class A-R (5) $ 100 100%
Class B-1 Upper Tier REMIC (6) $5,092,000 $ 25,000.00
Class B-1 Interest
Class B-2 Upper Tier REMIC (7) $3,880,000 $ 25,000.00
Class B-2 Interest
Class B-3 Upper Tier REMIC (8) $2,182,000 $ 25,000.00
Class B-3 Interest
Class B-4 Class B-4 (9) $1,212,000 $ 100,000.00
Class B-5 Class B-5 (9) $ 970,000 $ 100,000.00
Class B-6 Class B-6 (9) $1,700,598 $ 100,000.00
</TABLE>
(1) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class A-1 Certificates will
be the
least of (i) LIBOR plus 0.280%; (ii) the Pool 1 Net WAC and
(iii) 11.75%;
provided, however, if the Mortgage Loans and related property
are not
purchased pursuant to Section 7.01(c) on the Initial Optional
Purchase
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class A-1
Certificates will be LIBOR plus 0.560%.
(2) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class A-2 Certificates will
be the
least of (i) LIBOR plus 0.300%; (ii) the Pool 2 Net WAC and
(iii) 11.75%;
provided, however, if the Mortgage Loans and related property
are not
purchased pursuant to Section 7.01(c) on the Initial Optional
Purchase
Date, then with respect to the Distribution Date occurring in
the month in
which the next LIBOR Determination Date with respect to the
Class A-2
Certificates occurs and each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class A-2
Certificates will be LIBOR plus 0.600%.
(3) The Class X-A Certificates consist of two components, the
X-A1 Component
and X-A2 Component. On any Distribution Date, the Class X-A
Certificate
will have a Class Notional Amount equal to the sum of the
Component
Notional Amount of such two Components. The Class X-A
Certificates are
entitled to receive on each Distribution Date the sum of the
amount of
interest accrued on such two Components.
(4) The Class X-B Certificates will represent a 100% interest in
each of
Component XB1, Component XB2 and Component XB3. See the
definitions of
"Component XB1", "Component XB2" and "Component XB3" for the
interest rate
and notional balance of these Components. On any Distribution
Date, the
Class X-B Certificates will have a Class Notional Amount equal
to the sum
of the Component Notional Amount of Component XB1, Component XB2
and
Component XB3.
(5) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class A-R Certificate will
equal the
Pool 1 Net WAC.
5
<PAGE>
(6) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class B-1 Certificates will
be the
least of (i) LIBOR plus0.500%; (ii) the Subordinate Net WAC and
(iii)
11.75%; provided, however, if the Mortgage Loans and related
property are
not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class B-1
Certificates will be LIBOR plus 0.750%.
(7) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class B-2 Certificates will
be the
least of (i) LIBOR plus 0.850%; (ii) the Subordinate Net WAC and
(iii)
11.75%; provided, however, if the Mortgage Loans and related
property are
not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class B-2
Certificates will be LIBOR plus 1.275%.
(8) The Certificate Interest Rate with respect to any
Distribution Date (and
the related Accrual Period) for the Class B-3 Certificates will
be the
least of (i) LIBOR plus 1.50%; (ii) the Subordinate Net WAC and
(iii)
11.75%; provided, however, if the Mortgage Loans and related
property are
not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class B-3
Certificates will be LIBOR plus 2.250%.
(9) The Certificate Interest Rates with respect to any
Distribution Date (and
the related Accrual Period) for the Class B-4, Class B-5 and
Class B-6
Certificates will be equal to the Subordinate Net WAC.
As of the Cut-off Date, the Mortgage Loans had an aggregate
Scheduled
Principal Balance of $485,000,698.13.
In consideration of the mutual agreements herein contained, the
Depositor,
the Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise
requires,
shall have the following meanings:
Accepted Servicing Practices: The Servicer's normal servicing
practices,
which will conform to the mortgage servicing practices of
prudent mortgage
lending institutions which service for their own account
mortgage loans of the
same type as the Mortgage Loans in the jurisdictions in which
the related
Mortgaged Properties are located.
Accountant: A Person engaged in the practice of accounting who
(except
when this Agreement provides that an Accountant must be
Independent) may be
employed by or affiliated with the Depositor or an Affiliate of
the Depositor.
Accrual Period: With respect to any Distribution Date and any
Class of
LIBOR Certificates, the period commencing on the 25th day of the
month preceding
the month in which the Distribution Date occurs and ending on
the 24th day of
the month in which the Distribution
6
<PAGE>
Date occurs; provided, however, that the first Accrual Period
with respect to
the LIBOR Certificates shall be the period beginning on the
Closing Date and
ending on January 24, 2005. The Accrual Period applicable to the
Components,
Class A-R, Class B-4, Class B-5, Class B-6 Certificates and each
Class of Lower
Tier REMIC Interests shall be the calendar month immediately
preceding the month
in which the related Distribution Date occurs. Interest shall
accrue on all
Classes of Certificates, all Components and on all Lower Tier
REMIC Interests on
the basis of a 360-day year consisting of twelve 30-day
months.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral
Mortgage
Loan, the meaning assigned thereto in the Mortgage Loan Purchase
and Sale
Agreement.
Additional Collateral Mortgage Loan: Each Mortgage Loan
identified as such
in the Mortgage Loan Schedule.
Adjustment Date: As to any Mortgage Loan, the date on which the
related
Mortgage Rate adjusts in accordance with the terms of the
related Mortgage Note.
Advance: With respect to a Mortgage Loan, the payments required
to be made
by the Trustee solely in its capacity as successor servicer or
by the Servicer
with respect to any Distribution Date pursuant to this
Agreement, the amount of
any such payment being equal to the aggregate of the payments of
principal and
interest (net of the applicable Servicing Fee and net of any net
income in the
case of any REO Property) on the Mortgage Loans that were due on
the related Due
Date and not received as of the close of business on the related
Determination
Date, less the aggregate amount of any such delinquent payment
that either the
Trustee or the Servicer has determined would constitute
Nonrecoverable Advances
if advanced.
Adverse REMIC Event: As defined in Section 10.01(f) hereof.
Affiliate: With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise; and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Senior Percentage: As to any Distribution Date, the
percentage
equivalent of a fraction, the numerator of which is the
aggregate of the Class
Principal Amounts of the Class A-1, Class A-2 and Class A-R
Certificates and the
denominator of which is the Aggregate Stated Principal Balance,
but in no event
greater than 100%.
Aggregate Stated Principal Balance: As to any Distribution Date,
the
aggregate of the Stated Principal Balances for all Mortgage
Loans (and when such
term is used with respect to a particular Mortgage Pool, the
aggregate of the
Stated Principal Balances of the Mortgage Loans in such Mortgage
Pool) which
were outstanding on the Due Date in the month preceding the
month of such
Distribution Date.
Aggregate Subordinate Percentage: As to any Distribution Date,
the
difference between 100% and the Aggregate Senior Percentage for
such
Distribution Date, but in no event less than zero.
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<PAGE>
Aggregate Voting Interests: The aggregate of the Voting
Interests of all
the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all
amendments and
supplements hereto.
Allocable Share: With respect to each Class of Subordinate
Certificates
and any Distribution Date, the percentage equivalent of a
fraction, the
numerator of which is the Class Principal Amount of such Class
and the
denominator of which is the aggregate of the Class Principal
Amounts of each
Class of Subordinate Certificates.
Ancillary Fees: With respect to any Mortgage Loan, (i) all late
charges,
(ii) all fees payable pursuant to Cendant's "Speed Pay" program,
(iii) all
returned-item charges (e.g. insufficient funds charges) and (iv)
modification or
conversion fees.
Applicable Credit Support Percentage: As to any Class of
Subordinate
Certificates and any Distribution Date, the sum of the Class
Subordination
Percentages of such Class and the aggregate Class Subordination
Percentage of
all other Classes of Subordinate Certificates having higher
numerical Class
designations than such Class.
Apportioned Principal Balance: As to any Distribution Date and
each Class
of Subordinate Certificates and any Mortgage Pool, the Class
Principal Amount
thereof multiplied by a fraction, the numerator of which is the
applicable Pool
Subordinate Amount (i.e., the Pool 1 Subordinate Amount or the
Pool 2
Subordinate Amount, as the case may require), and the
denominator of which is
the sum of such Pool Subordinate Amounts on such date.
Appraised Value: With respect to any Mortgage Loan, the
Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the
value of the
Mortgaged Property based upon the appraisal made at the time of
the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the
time of the origination of such Mortgage Loan; and (ii) with
respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property
based upon the
appraisal made at the time of the origination of such
Refinancing Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer
or equivalent instrument, in recordable form, sufficient under
the laws of the
jurisdiction wherein the related Mortgaged Property is located
to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of
transfer or
equivalent instrument may be in the form of one or more blanket
assignments
covering the Mortgage Loans secured by Mortgaged Properties
located in the same
jurisdiction, if permitted by law; provided, however, that the
Trustee shall not
be responsible for determining whether any such assignment is in
recordable
form.
Authenticating Agent: The Trustee or any authenticating agent
appointed by
the Trustee pursuant to Section 6.10 until any successor
authenticating agent
for the Certificates is named, and thereafter "Authenticating
Agent" shall mean
any such successor.
Authorized Officer: Any Person who may execute an Officer's
Certificate on
behalf of the Depositor.
Available Distribution Amount: With respect to any Distribution
Date and
each Mortgage Pool, the total amount of all cash received by the
Trustee on the
Mortgage Loans in
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such Mortgage Pool from the Servicer or otherwise through the
Distribution
Account Deposit Date for deposit into the Distribution Account
in respect of
such Distribution Date, including (1) all scheduled installments
of interest
(net of the Servicing Fee) and principal collected on the
related Mortgage Loans
and due during the Due Period related to such Distribution Date,
together with
any Advances in respect thereof, (2) all Insurance Proceeds,
Liquidation
Proceeds, Subsequent Recoveries and the proceeds of any
Additional Collateral
from the related Mortgage Loans, in each case for such
Distribution Date, (3)
all partial or full Principal Prepayments, together with any
accrued interest
thereon, identified as having been received from the related
Mortgage Loans
during the related Prepayment Period, (4) any amounts received
from the Servicer
in respect of Prepayment Interest Shortfalls with respect to the
related
Mortgage Loans; and (5) the aggregate Purchase Price of all
Defective Mortgage
Loans and Converted Mortgage Loans (if any) in such Mortgage
Pool purchased from
the Trust Fund during the related Prepayment Period, minus:
(A) all related fees, charges and amounts payable or
reimbursable to the
Trustee under this Agreement, to the extent that, if paid by the
Trust Fund,
such fees, charges or other amounts would constitute
"unanticipated expenses"
(within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii)) of any
of the REMICs provided for herein and up to an aggregate maximum
amount equal to
$300,000 annually; provided, such annual aggregate maximum
amount shall exclude
(i) any Servicing Transfer Costs, or amounts reimbursable to the
Servicer under
this Agreement and (ii) any costs, damages or expenses incurred
by the Trustee
in connection with any "high cost" home loans or any predatory
or abusive
lending laws, which amounts shall in no case be subject to any
such limitation;
(B) in the case of (2), (3), (4) and (5) above, any related
unreimbursed
expenses incurred by the Servicer in connection with a
liquidation or
foreclosure and any unreimbursed Advances or Servicing Advances
due to the
Servicer (or, pursuant to Section 5.04, the Trustee);
(C) any related unreimbursed Nonrecoverable Advances due to the
Servicer
(or, pursuant to Section 5.04, the Trustee); and
(D) in the case of (1) through (4) above, any related amounts
collected
which are determined to be attributable to a subsequent Due
Period or Prepayment
Period.
Bankruptcy: As to any Person, the making of an assignment for
the benefit
of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as
a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or
insolvency proceeding, the seeking of reorganization,
arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or
seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or
liquidator,
dissolution, or termination, as the case may be, of such Person
pursuant to the
provisions of either the Bankruptcy Code or any other similar
state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as
amended.
Basis Risk Shortfall: With respect to any Distribution Date and
any Class
of LIBOR Certificates, the excess, if any, of (i) the amount of
Current Interest
that would have been payable on such Class for such Distribution
Date if the
Certificate Interest Rate for such Class as set forth in the
Preliminary
Statement hereto were determined without regard to clause (ii)
in the definition
thereof, over (ii) the actual Current Interest payable on such
Class for such
Distribution Date.
BBA: The British Banker's Association.
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<PAGE>
Book-Entry Certificates: Beneficial interests in Certificates
designated
as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which
shall be evidenced or made through book entries by a Clearing
Agency as
described in Section 3.09; provided, that after the occurrence
of a Book-Entry
Termination whereupon book-entry registration and transfer are
no longer
permitted and Definitive Certificates are to be issued to
Certificate Owners,
such Book-Entry Certificates shall no longer be "Book-Entry
Certificates." As of
the Closing Date, the following Classes of Certificates
constitute Book-Entry
Certificates: Class A-1, Class A-2, Class X-A, Class B-1, Class
B-2, Class B-3,
Class B-4, Class B-5, Class B-6 and Class X-B.
Book-Entry Termination: The occurrence of any of the following
events: (i)
the Clearing Agency is no longer willing or able to properly
discharge its
responsibilities with respect to the Book Entry Certificates,
and the Depositor
is unable to locate a qualified successor; or (ii) the Depositor
at its option
advises the Trustee and the Certificate Registrar in writing
that it elects to
terminate the book-entry system through the Clearing Agency.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day
on which banking institutions in New York, New York or, if other
than New York,
any city in which the Corporate Trust Office of the Trustee is
located, or the
States of Maryland or Minnesota, are authorized or obligated by
law or executive
order to be closed.
Cendant: Cendant Mortgage Corporation or its successors in
interest.
Certificate: Any one of the certificates signed by the Trustee
and
authenticated by the Authenticating Agent in substantially the
forms attached
hereto as Exhibit A.
Certificate Group: Each of the Group 1 Certificates and the
Group 2
Certificates.
Certificate Interest Rate: With respect to each Class of
Certificates and
any Distribution Date, the applicable per annum rate described
in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
who is the owner of such Book-Entry Certificate, as reflected on
the books of
the Clearing Agency, or on the books of a Person maintaining an
account with
such Clearing Agency (directly or as an indirect participant, in
accordance with
the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate
(other than
a Class X Certificate), at the time of determination, the
maximum specified
dollar amount of principal to which the Holder thereof is then
entitled
hereunder, such amount being equal to the initial principal
amount set forth on
the face of such Certificate, less (i) the amount of all
principal distributions
previously made with respect to such Certificate; (ii) all
Realized Losses
allocated to such Certificate; and (iii) in the case of a
Subordinate
Certificate, any Subordinate Certificate Writedown Amount
allocated to such
Certificates. Notwithstanding the foregoing, on any Distribution
Date relating
to a Due Period in which a Subsequent Recovery has been received
by the
Servicer, the Certificate Principal Amount of any Class of
Certificates then
outstanding for which any Realized Loss or any Subordinate
Certificate Writedown
Amount has been applied will be increased, in order of
seniority, by an amount
equal to the lesser of (i) the amount such Class of Certificates
has been
written down in respect of Realized Losses or Subordinate
Certificate Writedown
Amounts, to the extent not previously offset by increases in
Certificate
Principal Amount pursuant to this sentence and (ii) the total of
any Subsequent
Recovery distributed on such date to the Certificateholders
(reduced (x) by the
amount of the increase in the Certificate Principal Amount of
any more senior
Class of Certificates pursuant to this sentence on
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<PAGE>
such Distribution Date and (y) to reflect a proportionate amount
of the increase
in the Certificate Principal Amount of any pari passu Class of
Certificates on
such Distribution Date pursuant to this sentence). For purposes
of Article V
hereof, unless specifically provided to the contrary,
Certificate Principal
Amounts shall be determined as of the close of business of the
immediately
preceding Distribution Date, after giving effect to all
distributions made on
such date.
Certificate Register and Certificate Registrar: The register
maintained
and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Civil Relief Act: The Servicemembers Civil Relief Act as
amended.
Class: Collectively, Certificates bearing the same class
designation. In
the case of the REMIC 1, REMIC 2 and the Upper Tier REMIC, the
term "Class"
refers to all REMIC Interests having the same alphanumeric
designation.
Class A Certificates: Any Class A-1, Class A-2 or Class A-R
Certificate.
Class A-R Certificate: The Class A-R Certificate executed by the
Trustee,
and authenticated and delivered by the Authenticating Agent,
substantially in
the form annexed hereto as Exhibit A, and evidencing the
ownership of the Class
LT1-R Interest, the Class LT2-R Interest and the residual
interest in the Upper
Tier REMIC.
Class Excess Interest Amount: For each Class of the LIBOR
Certificates and
the Component related to such Class, the product of (i) the
initial Class
Principal Amount of such Class, (ii) the initial Certificate
Interest Rate of
such Class and (iii) a fraction, the numerator of which is the
excess 30 over of
the number of days in the initial Accrual Period for such Class
and the
denominator of which is 360.
Class Notional Amount: With respect to the Class X-A and Class
X-B
Certificates, the class notional amount calculated as provided
in the
Preliminary Statement hereto.
Class Principal Amount: With respect to each Class of
Certificates (other
than a Class X Certificate) the aggregate of the Certificate
Principal Amounts
of all Certificates of such Class at the date of
determination.
Class X Certificates: Any of the Class X-A or Class X-B
Certificates.
Class Subordination Percentage: With respect to each Class of
Subordinate
Certificates, for each Distribution Date, the percentage
obtained by dividing
the Class Principal Amount of such Class immediately prior to
such Distribution
Date by the sum of the Class Principal Amounts of all Classes of
Certificates
immediately prior to such Distribution Date.
Clearing Agency: An organization registered as a "clearing
agency"
pursuant to Section 17A of the Securities Exchange Act of 1934,
as amended. As
of the Closing Date, the Clearing Agency shall be The Depository
Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other
financial
institution or other Person for whom from time to time a
Clearing Agency effects
book-entry transfers and pledges of securities deposited with
the Clearing
Agency.
11
<PAGE>
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended, and as it
may be
further amended from time to time, any successor statutes
thereto, and
applicable U.S. Department of Treasury regulations issued
pursuant thereto in
temporary or final form.
Compensating Interest Payment: As to any Distribution Date, the
lesser of
(1) the Servicing Fee for such date and (2) any Prepayment
Interest Shortfall
for such date.
Component Interest Rate: With respect to the X-A1 Component and
any
Distribution Date, the interest rate specified in the definition
of X-A1
Component. With respect to the X-A2 Component and any
Distribution Date, the
interest rate specified in the definition of X-A2 Component.
With respect to
Component XB1 and any Distribution Date, the interest rate
specified in the
definition of Component XB1. With respect to Component XB2 and
any Distribution
Date, the interest rate specified in the definition of Component
XB2. With
respect to Component XB3 and any Distribution Date, the interest
rate specified
in the definition of Component XB3.
Component Notional Amount: With respect to X-A1 Component and
any
Distribution Date, the notional amount specified in the
definition of X-A1
Component. With respect to X-A2 Component and any Distribution
Date, the
notional amount specified in the definition of X-A2 Component.
With respect to
Component XB1 and any Distribution Date, the notional amount
specified in the
definition of Component XB1. With respect to Component XB2 and
any Distribution
Date, the notional amount specified in the definition of
Component XB2. With
respect to Component XB3 and any Distribution Date, the notional
amount
specified in the definition of Component XB3.
Component XB1: A regular interest in the Upper Tier REMIC having
a
notional amount for any Distribution Date equal to the Class
Principal Amount of
the Class B-1 Certificates immediately before such Distribution
Date and having
an interest rate with respect to any Distribution Date (and the
related Accrual
Period) equal to the excess, if any, of (x) the Subordinate Net
WAC for such
Distribution Date over (y) the Certificate Interest Rate on the
Class B-1
Certificates for such Distribution Date. For purposes of the
definition of
"Class Excess Interest Amount", Component XB1 shall be related
to the Class B-1
Certificates.
Component XB2: A regular interest in the Upper Tier REMIC having
a
notional amount for any Distribution Date equal to the Class
Principal Amount of
the Class B-2 Certificates immediately before such Distribution
Date and having
an interest rate with respect to any Distribution Date (and the
related Accrual
Period) equal to the excess, if any, of (x) the Subordinate Net
WAC for such
Distribution Date over (y) the Certificate Interest Rate on the
Class B-2
Certificates for such Distribution Date. For purposes of the
definition of
"Class Excess Interest Amount", Component XB2 shall be related
to the Class B-2
Certificates.
Component XB3: A regular interest in the Upper Tier REMIC having
a
notional amount for any Distribution Date equal to the Class
Principal Amount of
the Class B-3 Certificates immediately before such Distribution
Date and having
an interest rate with respect to any Distribution Date (and the
related Accrual
Period) equal to the excess, if any, of (x) the Subordinate Net
WAC for such
Distribution Date over (y) the Certificate Interest Rate on the
Class B-3
Certificates for such Distribution Date. For purposes of the
definition of
"Class Excess Interest Amount", the Component XB3 shall be
related to the Class
B-3 Certificates.
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<PAGE>
Components: Each of the X-A1 Component, the X-A2 Component,
Component XB1,
Component XB2 and Component XB3.
Cooperative Corporation: The entity that holds title (fee or an
acceptable
leasehold estate) to the real property and improvements
constituting the
Cooperative Property and which governs the Cooperative Property,
which
Cooperative Corporation must qualify as a Cooperative Housing
Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative
Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned
by the
Cooperative Corporation, that includes the allocation of
individual dwelling
units to the holders of the shares of the Cooperative
Corporation.
Cooperative Shares: Shares issued by a Cooperative
Corporation.
Corporate Trust Office: With respect to the presentment of
Certificates
for registration of transfer, exchange or final payment, Wells
Fargo Bank, N.A.,
Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479,
Attention:
Corporate Trust Services - MLMI Series MLCC 2004-G and for all
other purposes,
Wells Fargo Bank, N.A., 9062 Old Annapolis Road, Columbia,
Maryland 21045,
Attention: Corporate Trust Services - MLMI Series MLCC 2004-G,
or such other
address as the Trustee may designate from time to time by notice
to the
Certificateholders.
Corresponding Classes of Certificates or Components: With
respect to each
Lower Tier REMIC Interest, the Class or Classes of Certificates
or Components
appearing opposite such Lower Tier REMIC Interest as described
in the
Preliminary Statement hereto.
Credit Support Depletion Date: The first Distribution Date, if
any, on
which the aggregate Certificate Principal Amounts of the
Subordinate
Certificates have been reduced to zero.
Current Interest: With respect to each Class of Certificates and
each
Component on each Distribution Date, the aggregate amount of
interest accrued at
the applicable Certificate Interest Rate or Component Interest
Rate during the
related Accrual Period on the Class Principal Amount or
Component Notional
Amount of such Class or Component; provided, however, that with
respect to the
first Distribution Date only, the aggregate Current Interest for
each Component
will be increased by the related Class Excess Interest
Amount.
Custodial Account: The separate trust account or accounts
created and
maintained by the Servicer pursuant to the Fannie Mae Servicing
Guide which
shall be entitled "Wells Fargo Bank, N.A., in trust for the
registered holders
for Merrill Lynch Mortgage Investors Trust Series MLCC 2004-G
Mortgage
Pass-Through Certificates." The Custodial Account shall be an
Eligible Account.
Custodial Agreement: The Custodial Agreement, dated as of
December 15,
2000, between Merrill Lynch Credit Corporation and Wells Fargo
Bank Minnesota,
N.A., as custodian, as amended by Amendment No. 1, dated as of
January 16, 2002
a copy of which (excluding all exhibits thereto) is attached
hereto as Exhibit
O.
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<PAGE>
Custodian: Wells Fargo Bank, N.A., any successor in interest or
any
successor custodian appointed pursuant to the Custodial
Agreement.
Cut-off Date: December 1, 2004.
Cut-off Date Balance: With respect to the Mortgage Loans in the
Trust Fund
on the Closing Date, the Aggregate Stated Principal Balance as
of the Cut-off
Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by
a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final
and
non-appealable, except such a reduction resulting from a
Deficient Valuation or
any reduction that results in a permanent forgiveness of
principal.
Defective Mortgage Loan: The meaning specified in Section
2.04(a).
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the
related Mortgaged Property by a court of competent jurisdiction
in an amount
less than the then outstanding indebtedness under the Mortgage
Loan, or any
reduction in the amount of principal to be paid in connection
with any Scheduled
Payment that results in a permanent forgiveness of principal,
which valuation or
reduction results from an order of such court which is final and
non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in
definitive,
fully registered, certificated form.
Deleted Mortgage Loan: As defined in Section 2.04(a).
Delinquent: Any Mortgage Loan with respect to which the
Scheduled Payment
due on a Due Date is not received.
Depositor: Merrill Lynch Mortgage Investors, Inc., a Delaware
corporation,
having its principal place of business at 250 Vesey Street, 4
World Financial
Center, 10th Floor, New York, New York 10080, or its successors
in interest.
Determination Date: With respect to each Distribution Date, the
15th day
of the month in which such Distribution Date occurs, or, if such
15th day is not
a Business Day, the next succeeding Business Day.
Disqualified Organization: A "disqualified organization" as
defined in
Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and
maintained
by the Trustee pursuant to Section 4.01 in the name of the
Trustee for the
benefit of the Certificateholders and designated "Wells Fargo
Bank, N.A., in
trust for registered holders of Merrill Lynch Mortgage Investors
Trust Series
MLCC 2004-G, Mortgage Pass-Through Certificates." Funds in the
Distribution
Account (exclusive of any earnings on investments made with
funds deposited in
the Distribution Account) shall be held in trust for the Trustee
and the
Certificateholders for the uses and purposes set forth in this
Agreement.
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<PAGE>
Distribution Account Deposit Date: The 18th day of each calendar
month
after the initial issuance of the Certificates or, if such 18th
day is not a
Business Day, the immediately preceding Business Day, commencing
in January
2005.
Distribution Date: The 25th day of each month or, if such 25th
day is not
a Business Day, the next succeeding Business Day, commencing in
January 2005.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled
Payment is due under the related Mortgage Note as indicated in
the Mortgage
Note, which is the first day of the calendar month.
Due Period: As to any Distribution Date, the period beginning on
the
second day of the month preceding the month of such Distribution
Date, and
ending on the first day of the month of such Distribution
Date.
EDP: The electronic data processing system used by the Seller
and the
Servicer, which are licensees of ALLTEL Information Services,
Inc.
Effective Loan-to-Value Ratio: A fraction, expressed as a
percentage, the
numerator of which is the original Stated Principal Balance of
the Mortgage
Loan, less the amount of Additional Collateral required to
secure such Mortgage
Loan at the time of origination, if any, and the denominator of
which is the
Appraised Value of the related Mortgage Property at such
date.
Eligible Account: Any of (i) an account or accounts maintained
with a
federal or state chartered depository institution or trust
company the
short-term unsecured debt obligations of which (or, in the case
of a depository
institution or trust company that is the principal subsidiary of
a holding
company, the debt obligations of such holding company) have the
highest
short-term ratings of each Rating Agency at the time any amounts
are held on
deposit therein, or (ii) an account or accounts in a depository
institution or
trust company in which such accounts are insured by the FDIC or
the SAIF (to the
limits established by the FDIC or the SAIF) and the uninsured
deposits in which
accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel
delivered to the Trustee and to each Rating Agency, the
Certificateholders have
a claim with respect to the funds in such account or a perfected
first priority
security interest against any collateral (which shall be limited
to Permitted
Investments) securing such funds that is superior to claims of
any other
depositors or creditors of the depository institution or trust
company in which
such account is maintained, or (iii) a trust account or accounts
maintained with
the trust department of a federal or state chartered depository
institution or
trust company, acting in its fiduciary capacity or (iv) any
other account
acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may
include, if otherwise qualified under this definition, accounts
maintained with
the Trustee, any Paying Agent, or the Servicer.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended,
and as it may be further amended from time to time, any
successor statutes
thereto, and applicable U.S. Department of Labor regulations
issued pursuant
thereto in temporary or final form.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that would satisfy the
requirements of the
Underwriter's Exemption, except, in relevant part, for the
requirement that the
certificates have received a rating at the time of acquisition
that is in one of
the three (or four, in the case of a "designated transaction")
highest generic
rating categories by at least one of the Rating Agencies.
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<PAGE>
ERISA Restricted Certificate: The Class A-R, Class B-5 and Class
B-6
Certificates and any other Certificate, unless the acquisition
and holding of
such other Certificate is covered by and exempt under the
Underwriter's
Exemption.
Escrow Account: The separate trust account or accounts created
and
maintained by the Servicer pursuant to the Fannie Mae Servicing
Guide which
shall be entitled "Wells Fargo Bank, N.A., in trust for the
registered holders
for Merrill Lynch Mortgage Investors Trust Series MLCC 2004-G
Mortgage
Pass-Through Certificates." The Escrow Account shall be an
Eligible Account.
Event of Default: As defined in Section 6.14.
Fannie Mae: The entity formerly known as the Federal National
Mortgage
Association, a federally chartered and privately owned
corporation organized and
existing under the Federal National Mortgage Association Charter
Act, or any
successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHA: The Federal Housing Administration or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a
corporate
instrumentality of the United States created and existing under
Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Final Certification: As referred to in Section 2.02(c), the form
of which
is set forth at Exhibit L.
Fitch Ratings: Fitch, Inc., or any successor in interest.
GNMA: The Government National Mortgage Association, or any
successor
thereto.
Global Securities: The global certificates representing the
Book-Entry
Certificates.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class A-1 or Class A-R Certificate.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class A-2 Certificate.
Holder or Certificateholder: The registered owner of any
Certificate as
recorded on the books of the Certificate Registrar except that,
solely for the
purposes of taking any action or giving any consent pursuant to
this Agreement,
any Certificate registered in the name of the Depositor, the
Trustee or the
Servicer, or any Affiliate thereof shall be deemed not to be
outstanding in
determining whether the requisite percentage necessary to effect
any such
consent has been obtained, except that, in determining whether
the Trustee shall
be protected in relying upon any such consent, only Certificates
which a
Responsible Officer of the Trustee knows to be so owned shall be
disregarded.
The Trustee may request and conclusively rely on
certifications
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<PAGE>
by the Depositor and the Servicer in determining whether any
Certificates are
registered to an Affiliate of the Depositor or the Servicer.
HUD: The United States Department of Housing and Urban
Development, or any
successor thereto.
Indemnified Parties: As defined in Section 9.15.
Independent: When used with respect to any Accountants, a Person
who is
"independent" within the meaning of Rule 2-01(b) of the
Securities and Exchange
Commission's Regulation S-X. When used with respect to any other
Person, a
Person who (a) is in fact independent of another specified
Person and any
Affiliate of such other Person, (b) does not have any material
direct financial
interest in such other Person or any Affiliate of such other
Person, and (c) is
not connected with such other Person or any Affiliate of such
other Person as an
officer, employee, promoter, underwriter, trustee, partner,
director or Person
performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in
effect for
adjustment of the Mortgage Rate as set forth as such on the
related Mortgage
Note.
Initial Certification: As referred to in Section 2.02(a), the
form of
which is set forth at Exhibit K.
Initial LIBOR Rate: 2.4175% with respect to the Class A-1, Class
B-1,
Class B-2 and Class B-3 Certificates and 2.7700% with respect to
the Class A-2
Certificates.
Initial Optional Purchase Date: The first Distribution Date
following the
date on which the Aggregate Stated Principal Balance is less
than 10.00% of the
Cut-off Date Balance.
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy,
including all names and endorsements thereto in effect,
including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy
(excluding
proceeds required to be applied to the restoration and repair of
the related
Mortgaged Property or released to the Mortgagor), in each case
other than any
amount included in such Insurance Proceeds in respect of Insured
Expenses and
the proceeds from any Limited Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any
other
insurance policy with respect to the Mortgage Loans.
Interest Distribution Amount: For each Class of Certificates or
Component,
on any Distribution Date, the Current Interest for such Class or
Component, as
reduced by such Class's or Component's share of Net Prepayment
Interest
Shortfalls and Relief Act Reductions. Any such shortfalls and
reductions shall
be allocated among (i) all Classes of Certificates (other than
the Class X
Certificates) of the related Certificate Group from such
Mortgage Pool, (ii) the
X-A1 Component (in the case of Net Prepayment Interest
Shortfalls or Relief Act
Reductions related to Pool 1) or the X-A2 Component (in the case
of Net
Prepayment Interest Shortfalls or Relief Act Reductions related
to Pool 2), and
(iii) the Subordinate Certificates proportionately on the basis
of (1) in the
case of the Senior Certificates (other than the Class X
Certificates), Current
Interest otherwise distributable thereon on such Distribution
Date; (2) in the
case of the X-A1 Component
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<PAGE>
and X-A2 Component, if applicable, the Current Interest
otherwise distributable
thereon on such Distribution Date and (3) in the case of
Subordinate
Certificates, interest accrued at the Net WAC of the applicable
Mortgage Pool on
their Apportioned Principal Balance before taking into account
any reductions in
such amounts from Net Interest Shortfalls for that Distribution
Date. Amounts so
allocated to the Class B-1, Class B-2 or Class B-3 Certificates
will be
allocated between the Class B-1 Certificate and Component XB1,
between the Class
B-2 Certificates and Component XB2 or between the Class B-3
Certificates and
Component XB3, as the case may be, proportionately, based on the
Current
Interest otherwise distributable in respect thereof on such
Distribution Date.
Interest Shortfall: As to any Class of Certificates or Component
and any
Distribution Date, (i) the amount by which the Interest
Distribution Amount
(exclusive of any payments to such Class in respect of Basis
Risk Shortfalls or
Unpaid Basis Risk Shortfalls) for such Class or Component on
such Distribution
Date and all prior Distribution Dates exceeds (ii) amounts
distributed in
respect thereof to such Class or Component on prior Distribution
Dates (as
determined without reduction for amounts not paid to such Class
or in respect of
such Component as a result of the provisos set forth in Sections
5.02(a)(i) and
5.02(b) hereof.
Interest Transfer Amount: For any Distribution Date and for
any
Undercollateralized Group, an amount equal to one month's
interest on the
applicable Principal Transfer Amount at the related Mortgage
Pool's Net WAC,
plus any shortfall of interest on the Senior Certificates
related to such
Undercollateralized Group remaining unpaid from prior
Distribution Dates.
Intervening Assignments: The original intervening assignments of
the
Mortgage, notices of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in December
2029.
LIBOR: With respect to the first Accrual Period, the Initial
LIBOR Rate.
With respect to each subsequent Accrual Period, a per annum rate
determined on
the LIBOR Determination Date in the following manner by the
Trustee on the basis
of the "Interest Settlement Rate" set by the BBA for one-month
(or six-month
with respect to the Class A-2 Certificates) United States dollar
deposits, as
such rates appear on the Telerate Page 3750, as of 11:00 a.m.
(London time) on
such LIBOR Determination Date.
(a) If on such a LIBOR Determination Date, the BBA's Interest
Settlement
Rate does not appear on the Telerate Page 3750 as of 11:00 a.m.
(London time),
or if the Telerate Page 3750 is not available on such date, the
Trustee will
obtain such rate from Reuters' "page LIBOR 01" or Bloomberg's
page "BBAM." If
such rate is not published for such LIBOR Determination Date,
LIBOR for such
date will be the most recently published Interest Settlement
Rate. In the event
that the BBA no longer sets an Interest Settlement Rate, the
Trustee will
designate an alternative index that has performed, or that the
Trustee expects
to perform, in a manner substantially similar to the BBA's
Interest Settlement
Rate. The Trustee will select a particular index as the
alternative index only
if it receives an Opinion of Counsel, which opinion shall be an
expense
reimbursed from the Distribution Account, that the selection of
such index will
not cause any of the REMICs to lose their classification as
REMICs for federal
income tax purposes.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent
calculation of the Certificate Interest Rate applicable to the
LIBOR
Certificates for the relevant Accrual Period, in the absence of
manifest error,
will be final and binding.
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<PAGE>
LIBOR Business Day: Any day on which banks in London, England
and The City
of New York are open and conducting transactions in foreign
currency and
exchange.
LIBOR Certificate: Any Class A-1, Class A-2, Class B-1, Class
B-2 and
Class B-3 Certificate.
LIBOR Determination Date: With respect to the Class A-1, Class
B-1, Class
B-2 and Class B-3 Certificates, the second LIBOR Business Day
immediately
preceding the commencement of each Accrual Period and with
respect to the Class
A-2 Certificates, the second LIBOR Business Day immediately
preceding every
sixth Accrual Period beginning with the Accrual Period
commencing during January
2005.
Limited Purpose Surety Bond: Any Limited Purpose Surety Bond
listed in
Exhibit F.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) which was
liquidated in the
calendar month preceding the month of such Distribution Date and
as to which the
Servicer has certified (in accordance with this Agreement) that
it has received
all amounts it expects to receive in connection with the
liquidation of such
Mortgage Loan including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in
connection with the partial or complete liquidation of defaulted
Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or
amounts
received in connection with any condemnation or partial release
of a Mortgaged
Property and any other proceeds received in connection with an
REO Property.
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to
any date
of determination, the fraction (expressed as a percentage) the
numerator of
which is the principal balance of the related Mortgage Loan at
such date of
determination and the denominator of which is the Appraised
Value of the related
Mortgaged Property.
Loss: With respect to any indemnification arising under Section
9.15 of
this Agreement, any and all losses, claims, damages, penalties,
liabilities,
obligations, judgments, settlements, awards, demands, offsets,
defenses,
counterclaims, actions or proceedings, reasonable out-of-pocket
costs, expenses
and attorneys' fees of an Indemnified Party (including but not
limited to, (a)
any reasonable costs, expenses and attorneys' fees incurred by
such Indemnified
Party in enforcing such right of indemnification against any
Indemnifying Party
or with respect to any appeal, and (b) interest on any amount
for which an
Indemnified Party is entitled to be indemnified from the date
such Indemnified
Party notifies the Servicer of the expenditure or such amounts
until such
amounts are paid by the Servicer; provided, however, that in no
event shall a
"Loss" include a claim for consequential damages, indirect
damages or lost
profits except when the Loss results from the gross negligence,
fraud or willful
misconduct of the Servicer.
Lower Tier REMIC Interests: Any of the REMIC 1 Interests or the
REMIC 2
Interests.
Lower Tier Regular Interests: Any of the REMIC 1 Regular
Interests or the
REMIC 2 Regular Interests.
Margin: As to each Mortgage Loan, the percentage amount set
forth on the
related Mortgage Note added to the Index in calculating the
Mortgage Rate
thereon.
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<PAGE>
Material Defect: As defined in Section 2.02(b).
Maximum Rate: As to any Mortgage Loan, the maximum rate set
forth on the
related Mortgage Note at which interest can accrue on such
Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation
organized and existing under the laws of the State of Delaware
or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on
the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically
maintained by MERS.
Moody's: Moody's Investors Service, Inc., or any successor in
interest.
Monthly Statement: The statement delivered to the
Certificateholders
pursuant to Section 4.02.
Mortgage: A mortgage, deed of trust or other instrument
encumbering a fee
simple interest in real property securing a Mortgage Note,
together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the
mortgage
documents required to be delivered to the Trustee pursuant to
this Agreement.
Mortgage Loan: A Mortgage and the related notes or other
evidences of
indebtedness secured by each such Mortgage conveyed,
transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01
(including any
Replacement Loan and REO Property), including without
limitation, each Mortgage
Loan listed on the Mortgage Loan Schedule, as amended from time
to time.
Mortgage Loan Purchase and Sale Agreement: The Mortgage Loan
Purchase and
Sale Agreement, dated as of December 1, 2004, between the Seller
and the
Depositor with respect to the sale and purchase of the Mortgage
Loans.
Mortgage Loan Schedule: The schedule attached hereto as Schedule
A, which
shall identify each Mortgage Loan, as such schedule may be
amended by the
Depositor or the Servicer from time to time to reflect the
addition of
Replacement Mortgage Loans to, or the deletion of Deleted
Mortgage Loans from,
the Trust Fund. Such schedule shall, among other things (1)
identify the
designated Mortgage Pool in which such Mortgage Loan is included
and (2)
separately identify One-Month LIBOR Loans, Six-Month LIBOR Loans
and Additional
Collateral Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
the
indebtedness of a Mortgagor secured by a Mortgage under a
Mortgage Loan.
Mortgage Pools: Any of Pool 1 and Pool 2.
Mortgage Rate: As to any Mortgage Loan, the annual rate of
interest borne
by the related Mortgage Notes.
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<PAGE>
Mortgaged Property: The underlying property, including any
Additional
Collateral, securing a Mortgage Loan which, with respect to a
Cooperative Loan,
is the related Cooperative Shares and Property Lease.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated
Mortgage Loan or
any other disposition of related Mortgaged Property, the related
Liquidation
Proceeds net of Advances, Servicer Advances, related Servicing
Fees and any
other accrued and unpaid fees received and retained in
connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
Net Interest Shortfalls: With respect to any Distribution Date,
any Net
Prepayment Interest Shortfalls for that Distribution Date and
the amount of
interest that would otherwise have been received with respect to
any Mortgage
Loan which was subject to (i) a Relief Act Reduction or (ii) the
interest
portion of any Debt Service Reduction or Deficient Valuation,
after exhaustion
of the respective amounts of coverage provided by the
Subordinate Certificates
for those type of losses.
Net Mortgage Rate: With respect to any Mortgage Loan and any
Distribution
Date, the related Mortgage Rate as of the Due Date in the month
preceding the
month of such Distribution Date reduced by the Servicing Fee
Rate for such
Mortgage Loan.
Net Prepayment Interest Shortfall: With respect to any Mortgage
Loan and
any Distribution Date, the amount by which any Prepayment
Interest Shortfall for
such date exceeds the amount payable by the Servicer in respect
of such
shortfall.
Net WAC: As to any Distribution Date, the weighted average of
the Net
Mortgage Rates of the Mortgage Loans as of the first day of the
calendar month
immediately preceding the calendar month of such Distribution
Date, weighted on
the basis of their outstanding Stated Principal Balances at such
time. When the
term "Net WAC" is used herein with reference to only the
One-Month LIBOR Loans
or only the Six-Month LIBOR Loans, such weighted average shall
be computed with
reference solely to the Mortgage Loans in the relevant
group.
Non-Book-Entry Certificate: Any Certificate other than a
Book-Entry
Certificate.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Nonrecoverable Advance: Any portion of an Advance or Servicer
Advance
previously made or proposed to be made by the Servicer (as
certified in an
Officer's Certificate of the Servicer) or by the Trustee
pursuant to Section
5.04, which in the good faith judgment of such party, shall not
be ultimately
recoverable by such party from the related Mortgagor, related
Liquidation
Proceeds or otherwise.
Non-U.S. Person: Any person other than a "United States person"
within
the meaning of Section 7701(a)(30) of the Code.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of
the Board,
the Vice Chairman of the Board, the President, a vice president
(however
denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one
of the assistant treasurers or assistant secretaries (or
21
<PAGE>
any other officer customarily performing functions similar to
those performed by
any of the above designated officers and also to whom, with
respect to a
particular matter, such matter is referred because of such
officer's knowledge
of and familiarity with a particular subject) of the Depositor
or the Trustee,
as the case may be, and delivered to the Depositor or the
Trustee, as the case
may be, as required by this Agreement.
Officer's Certificate of the Servicer: A certificate (i) signed
by the
Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing
Director, a Vice President (however denominated), an Assistant
Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers
or Assistant
Secretaries of the Servicer, or (ii) if provided for herein,
signed by a
Servicing Officer, as the case may be, and delivered to the
Trustee or the
Depositor, as the case may be.
One-Month LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate
that
adjusts in accordance with LIBOR for one-month U.S. dollar
deposits.
Opinion of Counsel: A written opinion of counsel, who may be an
employee
of the Depositor or the Servicer, that is reasonably acceptable
to each
addressee of such opinion; provided that any Opinion of Counsel
relating to (a)
qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC
Provisions, must be an opinion of counsel reasonably acceptable
to each
addressee of such opinion, who (i) is in fact independent of the
Servicer and
the Depositor, (ii) does not have any material direct or
indirect financial
interest in the Servicer or the Depositor or in an affiliate of
either and (iii)
is not connected with the Servicer or the Depositor as an
officer, employee,
director or person performing similar functions.
Optional Termination Price: An amount equal to the sum of (i)
100% of the
Stated Principal Balance of the Mortgage Loans (other than any
Mortgage Loan
that has become an REO Property) plus accrued interest thereon
at the applicable
Mortgage Rate through the Due Date in the month in which the
Optional
Termination Price is to be distributed to the Certificateholders
and the fair
market value of any REO Property plus accrued interest thereon;
(ii) any
unreimbursed costs and damages incurred by the Trust Fund (or
the Trustee on
behalf of the Trust Fund) in connection with the violation of
any anti-predatory
or anti-abusive lending laws; and (iii) the payment of all
amounts (including,
without limitation, all previously unreimbursed Advances and
Servicing Advances
and accrued and unpaid Servicing Fees) payable or reimbursable
to the Servicer
or Trustee.
Original Applicable Credit Support Percentage: With respect to
each Class
of Subordinate Certificates, the corresponding percentage set
forth opposite its
Class designation: Class B-1 - 3.10%; Class B-2 - 2.05%; Class
B-3 - 1.25%;
Class B-4 - 0.80%; Class B-5 - 0.55%; and Class B-6 - 0.35%.
Original Subordinate Principal Amount: The aggregate of the
initial Class
Principal Amounts of the Classes of Subordinated
Certificates.
Originator: With respect to any Mortgage Loan, the entity that
(i) took
the Mortgagor's loan application, (ii) processed the Mortgagor's
loan
application, and (iii) closed and/or funded the Mortgagor's
Mortgage Loan.
Overcollateralized Group: On any Distribution Date, any
Certificate Group
which is not an Undercollateralized Group.
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<PAGE>
Parent Power(R) Guaranty and Security Agreement: With respect to
any
Additional Collateral Loan, as defined in the Mortgage Loan
Purchase and Sale
Agreement.
Paying Agent: Any paying agent appointed by the Trustee pursuant
to
Section 3.08.
Percentage Interest: With respect to any Certificate, its
percentage
interest in the undivided beneficial ownership interest in the
Trust Fund
evidenced by all Certificates of the same Class as such
Certificate. With
respect to any Certificate other than a Class X-A Certificate, a
Class X-B
Certificate or the Class A-R Certificate, the Percentage
Interest evidenced
thereby shall equal the initial Certificate Principal Amount
thereof divided by
the initial Class Principal Amount of all Certificates of the
same Class. With
respect to the Class A-R Certificate, the Percentage Interest
evidenced thereby
shall be as specified on the face thereof, or otherwise, be
equal to 100%. With
respect to any Class X-A Certificate, the Percentage Interest
evidenced thereby
shall equal its initial Class Notional Amount as set forth on
the face thereof
divided by the initial Class Notional Amount of such Class. With
respect to any
Class X-B Certificate, the Percentage Interest represented
thereby shall equal
the initial Class Notional Amount thereof divided by the initial
Class Notional
Amount of all of the Certificates of the same class.
Permitted Investments: At any time, any one or more of the
following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith
and
credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving
the
highest long-term debt rating of each Rating Agency, or such
lower
rating as shall not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by the Rating
Agencies, as
evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating
of
each Rating Agency rating such paper, or such lower rating as
shall
not result in the downgrading or withdrawal of the ratings
then
assigned to the Certificates by the Rating Agencies, as
evidenced by
a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or
trust
company incorporated under the laws of the United States or of
any
state thereof and subject to supervision and examination by
federal
and/or state banking authorities, provided that the commercial
paper
and/or long-term unsecured debt obligations of such
depository
institution or trust company (or in the case of the
principal
depository institution in a holding company system, the
commercial
paper or long-term unsecured debt obligations of such
holding
company, but only if Moody's is not the applicable Rating
Agency)
are then rated one of the two highest long-term and the
highest
short-term ratings of each Rating Agency for such securities,
or
such lower ratings as shall not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by
the
Rating Agencies, as evidenced by a signed writing delivered by
each
Rating Agency;
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<PAGE>
(v) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the
Rating
Agencies at the time of the issuance of such agreements, as
evidenced by a signed writing delivered by each Rating
Agency;
(vi) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered
into
with a depository institution or trust company (acting as
principal)
described in clause (iv) above;
(vii) securities (other than stripped bonds, stripped
coupons
or instruments sold at a purchase price in excess of 115% of
the
face amount thereof) bearing interest or sold at a discount
issued
by any corporation incorporated under the laws of the United
States
or any state thereof which, at the time of such investment, have
one
of the two highest ratings of each Rating Agency (except if
the
Rating Agency is Moody's, such rating shall be the highest
commercial paper rating of Moody's for any such series), or
such
lower rating as shall not result in the downgrading or
withdrawal of
the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each
Rating
Agency;
(viii) interests in any money market fund which at the date
of
acquisition of the interests in such fund and throughout the
time
such interests are held in such fund has the highest
applicable
rating by each Rating Agency rating such fund or such lower
rating
as shall not result in a change in the rating then assigned to
the
Certificates by each Rating Agency including funds for which
the
Trustee or any of its Affiliates is investment manager or
adviser;
(ix) short-term investment funds sponsored by any trust
company or national banking association incorporated under the
laws
of the United States or any state thereof which on the date
of
acquisition has been rated by each applicable Rating Agency in
their
respective highest applicable rating category or such lower
rating
as shall not result in a change in the rating then specified
stated
maturity and bearing interest or sold at a discount acceptable
to
each Rating Agency as shall not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by
the
Rating Agencies; and
(x) such other investments having a specified stated
maturity
and bearing interest or sold at a discount acceptable to the
Rating
Agencies as shall not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by the Rating
Agencies;
provided, that no such instrument shall be a Permitted
Investment if (i)
such instrument evidences the right to receive interest only
payments with
respect to the obligations underlying such instrument, (ii) such
instrument
would require the Depositor to register as an investment company
under the
Investment Company Act of 1940, as amended, or (iii) such
instrument would not
be a "permitted investment" within the meaning of such term as
provided for in
Section 860G(a)(5) of the Code and the Treasury Regulations
thereunder.
Person: Any individual, corporation, partnership, joint
venture,
association, joint-stock company, limited liability company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
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<PAGE>
Pool Net WAC: The Pool 1 Net WAC or Pool 2 Net WAC, as the
context may
require.
Pool 1: The aggregate of Mortgage Loans identified on the
Mortgage Loan
Schedule as being included in Pool 1.
Pool 1 Mortgage Loans: Any Mortgage Loan in Pool 1.
Pool 1 Net WAC: With respect to any Distribution Date, the
weighted
average of the Net Mortgage Rates of the Pool 1 Mortgage Loans
as of the first
day of the calendar month immediately preceding the calendar
month of such
Distribution Date, weighted on the basis of their Stated
Principal Balances at
such time.
Pool 1 Subordinate Amount: For any Distribution Date, the excess
of (a)
the Aggregate Stated Principal Balance of the Pool 1 Mortgage
Loans as of the
first day of the month preceding the month in which such
Distribution Date
occurs over (b) the sum of the Class Principal Amounts of the
Class A-1 and
Class A-R Certificates immediately before such Distribution
Date.
Pool 2: The aggregate of Mortgage Loans identified on the
Mortgage Loan
Schedule as being included in Pool 2.
Pool 2 Mortgage Loans: Any Mortgage Loan in Pool 2.
Pool 2 Net WAC: With respect to any Distribution Date, the
weighted
average of the Net Mortgage Rates of the Pool 2 Mortgage Loans
as of the first
day of the calendar month immediately preceding the calendar
month of such
Distribution Date, weighted on the basis of their Stated
Principal Balances at
such time.
Pool 2 Subordinate Amount: For any Distribution Date, the excess
of (a)
the Aggregate Stated Principal Balance of the Pool 2 Mortgage
Loans as of the
first day of the month preceding the month in which such
Distribution Date
occurs over (b) the aggregate Class Principal Amount of the
Class A-2
Certificates immediately before such Distribution Date.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution
Date, a fraction, expressed as a percentage, the numerator of
which is the
Aggregate Stated Principal Balance of such Mortgage Pool and the
denominator of
which is the Aggregate Stated Principal Balance as of such Due
Date.
Pool Subordinate Amount: Any of the Pool 1 Subordinate Amount or
the Pool
2 Subordinate Amount.
Prepayment Interest Shortfall: With respect to any full or
partial
Principal Prepayment of a Mortgage Loan, the excess, if any, of
(i) one full
month's interest at the applicable Mortgage Rate on the
outstanding principal
balance of such Mortgage Loan immediately prior to such
Principal Prepayment
over (ii) the amount of interest actually received with respect
to such Mortgage
Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the
calendar
month immediately preceding the month in which the Distribution
Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary
mortgage
guaranty insurance or any replacement policy therefor with
respect to any
Mortgage Loan.
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<PAGE>
Principal Distribution Amount: With respect to any Mortgage Pool
and any
Distribution Date, the sum of (a) each Scheduled Payment of
principal collected
or advanced on the related Mortgage Loans (before taking into
account any
Deficient Valuations or Debt Service Reductions) and due during
the related Due
Period, (b) that portion of the Purchase Price representing
principal of any
Mortgage Loans in such Mortgage Pool purchased in accordance
with Section 2.04
hereof and received during the related Prepayment Period, (c)
the principal
portion of any related Substitution Amount received during the
related
Prepayment Period, (d) the principal portion of all Insurance
Proceeds received
during the related Prepayment Period with respect to Mortgage
Loans in such
Mortgage Pool that are not yet Liquidated Mortgage Loans, (e)
the principal
portion of all Net Liquidation Proceeds received during the
related Prepayment
Period with respect to Liquidated Mortgage Loans in such
Mortgage Pool, (f) all
Subsequent Recoveries received during the related Prepayment
Period with respect
to Liquidated Mortgage Loans in such Mortgage Pool, (g) the
principal portion of
the proceeds of any Additional Collateral with respect to the
Mortgage Loans in
such Mortgage Pool, (h) the principal portion of all partial and
full principal
prepayments of Mortgage Loans in such Mortgage Pool applied by
the Servicer
during the related Prepayment Period and (i) on the Distribution
Date on which
the Trust Fund is to be terminated pursuant to Article VII
hereof, that portion
of the Optional Termination Price in respect of principal for
such Mortgage
Pool.
Principal Prepayment: Any Mortgagor payment of principal or
other recovery
of principal on a Mortgage Loan that is recognized as having
been received or
recovered in advance of its scheduled Due Date and applied to
reduce the
principal balance of the Mortgage Loan in accordance with the
terms of the
Mortgage Note or this Agreement.
Principal Prepayment In Full: Any Principal Prepayment of the
entire
principal balance of the Mortgage Loans.
Principal Transfer Amount: For any Distribution Date and for
any
Undercollateralized Group, the excess, if any, of the aggregate
Class Principal
Amount of such Undercollateralized Group immediately prior to
such Distribution
Date over the Aggregate Stated Principal Balance of the related
Mortgage Pool
immediately prior to such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial
or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a
lease or
occupancy agreement between a Cooperative Corporation and a
holder of related
Cooperative Shares.
Pro Rata Senior Percentage: With respect to each Distribution
Date and
each Mortgage Pool, the percentage equivalent of a fraction the
numerator of
which is the aggregate Class Principal Amount of the Class or
Classes of the
Related Certificate Group immediately prior to such Distribution
Date and the
denominator of which is the Aggregate Stated Principal Balance
of the related
Mortgage Pool for such Distribution Date.
Prospectus: The prospectus supplement dated December 23, 2004,
together
with the accompanying prospectus dated October 25, 2004,
relating to the initial
sale of the Class A-1, Class A-2, Class A-R, Class X-A, Class
B-1, Class B-2 and
Class B-3 Certificates.
Purchase Date: Any Distribution Date on which Certificates may
be
repurchased pursuant to Section 7.01(c).
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<PAGE>
Purchase Price: With respect to any Mortgage Loan required or
permitted to
be purchased by the Depositor pursuant to this Agreement, by the
Servicer
pursuant to this Agreement, or by the Seller pursuant to the
Mortgage Loan
Purchase Agreement, an amount equal to the sum of (i) 100% of
the unpaid
principal balance of the Mortgage Loan on the date of such
purchase, (ii)
accrued interest thereon at the applicable Net Mortgage Rate
from the date
through which interest was last paid by the Mortgagor to the Due
Date in the
month in which the Purchase Price is to be distributed to
Certificateholders and
(iii) any unreimbursed costs, penalties and/or damages incurred
by the Trust
Fund in connection with any violation relating to such Mortgage
Loan of any
predatory or abusive lending law.
Rapid Prepayment Conditions: As to any Distribution Date either
of the
following conditions: if (1) the Aggregate Subordinate
Percentage on such date
is less than 200% of the Aggregate Subordinate Percentage on the
Closing Date or
(2) the outstanding Stated Principal Balance of the Mortgage
Loans in any
Mortgage Pool delinquent 60 days or months, as a percentage of
such Mortgage
Pool's Pool Subordinate Amount, is greater than or equal to
50%.
Rating Agency: Each of Moody's, S&P and Fitch Ratings.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount
(not less than zero or more than the Stated Principal Balance of
the Mortgage
Loan) as of the date of such liquidation, equal to (i) the
Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Net Mortgage Rate from the Due Date as to
which interest
was last paid or advanced (and not reimbursed) to
Certificateholders up to the
Due Date in the month in which Liquidation Proceeds are required
to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds and
the proceeds of
any Additional Collateral, if any, received during the month in
which such
liquidation occurred, to the extent applied as recoveries of
interest at the Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan.
With respect to
each Mortgage Loan which has become the subject of a Deficient
Valuation, if the
principal amount due under the related Mortgage Note has been
reduced, the
difference between the principal balance of the Mortgage Loan
outstanding
immediately prior to such Deficient Valuation and the principal
balance of the
Mortgage Loan as reduced by the Deficient Valuation.
Record Date: As to any Distribution Date (i) with respect to the
LIBOR
Certificates, the last Business Day preceding such Distribution
Date (or the
Closing Date, in the case of the first Distribution Date) unless
such
Certificates shall no longer be Book-Entry Certificates, in
which case the
Record Date shall be the last Business Day of the month
preceding the month of
such Distribution Date and (ii) in the case of all other
Certificates (including
LIBOR Certificates that are subsequently reissued as Definitive
Certificates),
the last Business Day of the month preceding the month of each
Distribution
Date.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with
the refinancing of an existing mortgage loan.
Related Certificate Group: The Certificate Group related to a
particular
Mortgage Pool as indicated by the same numerical designation
(i.e., Group 1
Certificates are related to Pool 1 and Group 2 Certificates are
related to Pool
2).
Related Class of Upper Tier REMIC Interest: With respect to any
Class of
Certificates, the interest in the Upper Tier REMIC appearing
opposite such Class
in the Preliminary Statement hereto.
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<PAGE>
Relief Act Reductions: With respect to any Distribution Date and
any
Mortgage Loan as to which there has been a reduction in the
amount of interest
collectible thereon for the most recently ended calendar month
as a result of
the application of the Civil Relief Act, the amount, if any, by
which (i)
interest collectible on such Mortgage Loan for the most recently
ended calendar
month is less than (ii) interest accrued thereon for such month
pursuant to the
Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a
REMIC as
described in the Preliminary Statement.
REMIC Components: Each of the X-A1 Component, the X-A2
Component,
Component XB1, Component XB2 and Component XB3.
REMIC Interests: Any regular or residual interest in any of
REMIC 1, REMIC
2 or the Upper Tier REMIC, as described in the Preliminary
Statement.
REMIC Provisions: The provisions of the federal income tax law
relating to
real estate mortgage investment conduits, which appear at
Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and
regulations, including proposed regulations and rulings, and
administrative
pronouncements promulgated thereunder, as the foregoing may be
in effect from
time to time.
REMIC 1: As described in the Preliminary Statement.
REMIC 1 Interest: Each class of interest in REMIC 1 as described
in the
Preliminary Statement.
REMIC 1 Regular Interest: Each of the REMIC 1 Interests other
than the
Class LT1-R Interest.
REMIC 1 Subordinated Balance Ratio: The ratio among the
uncertificated
principal balances of each of the REMIC 1 Interests ending with
the designation
"A" that is equal to the ratio among, with respect to each such
REMIC 1
Interest, the excess of (x) the aggregate Scheduled Principal
Balance of the
Mortgage Loans in the related Mortgage Pool over (y) the
aggregate Class
Principal Amount of the Certificates in the Certificate Group
related to such
Mortgage Pool.
REMIC 2: As described in the Preliminary Statement.
REMIC 2 Interest: Each class of interest in REMIC 2 as described
in the
Preliminary Statement.
REMIC 2 Regular Interest: Each of the REMIC 2 Interests other
than the
Class LT2-R Interest.
REO Disposition: The final sale by the Servicer of an REO
Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through
foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted
Mortgage Loan or otherwise treated as having been acquired
pursuant to the REMIC
Provisions.
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<PAGE>
Replacement Mortgage Loan: A mortgage loan substituted by the
Seller for a
Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed
in a Request for Release substantially in the form attached to
this Agreement,
(i) have a Stated Principal Balance, after deduction of the
principal portion of
the Scheduled Payment due in the month of substitution, not in
excess of, and
not more than 10% less than, the Stated Principal Balance of the
Deleted
Mortgage Loan; (ii) have a Maximum Rate not less than (and not
more than two
percentage points greater than) the Maximum Rate of the Deleted
Mortgage Loan;
(iii) have a gross margin not less than that of the Deleted
Mortgage Loan and,
if Mortgage Loans equal to 1% or more of the balance of the
related Mortgage
Pool as of the Cut-off Date have become Deleted Mortgage Loans,
not more than
two percentage points more than that of the Deleted Mortgage
Loan; (iv) have an
Effective Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(v) have Adjustment Dates that are no more or less frequent than
the Deleted
Mortgage Loan; (vi) have a remaining term to maturity no greater
than (and not
more than one year less than that of) the Deleted Mortgage Loan;
(vii) not
permit conversion of the related Mortgage Rate to a permanent
fixed Mortgage
Rate; (viii) not be a Cooperative Loan unless the Deleted
Mortgage Loan was a
Cooperative Loan; (ix) have the same or better FICO credit
score; (x) have an
initial interest adjustment date no earlier than five months
before (and no
later than five months after) the initial adjustment date of the
Deleted
Mortgage Loan, (xi) comply with each representation and warranty
set forth in
Schedule B of this Agreement; and (xii) shall be accompanied by
an Opinion of
Counsel that such Replacement Mortgage Loan would not adversely
affect the REMIC
status of the Trust Estate or would not otherwise be prohibited
by this Pooling
and Servicing Agreement.
Request for Release: A request for release, substantially in the
form of
Exhibit N attached hereto, properly completed and signed by a
Servicing Officer
(or, if delivered on behalf of the Seller or Depositor, an
Authorized Officer
thereof).
Residual Certificate: The Class A-R Certificate.
Residual Interest: The Residual Certificate, other than the
portion
thereof representing the right to payments in respect of the
Class LT1-R
Interest and the Class LT2-R Interest.
RESPA: The Real Estate Settlement Procedures Act, 12 U.S.C
Section 2601 et
seq., and Regulation X, 24 C.F.R. Section 3500.21, thereunder,
as the foregoing
may be amended from time to time.
Responsible Officer: With respect to the Trustee, any officer in
the
corporate trust department or similar group of the Trustee with
direct
responsibility for the administration of this Agreement and
also, with respect
to a particular corporate trust matter, any other officer to
whom such matter is
referred because of his or her knowledge of and familiarity with
the particular
subject.
Restricted Certificate: Any Class X-B, Class B-4, Class B-5 or
Class B-6
Certificate.
Restricted Global Security: As defined in Section 3.01(c).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., or
any successor in interest.
SAIF: The Saving's Association Insurance Fund, or any successor
thereto.
29
<PAGE>
Schedule of Exceptions: As defined in Section 2.02(a) of this
Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on
any Due Date allocable to principal and/or interest on such
Mortgage Loan which,
unless otherwise specified in this Agreement, shall give effect
to any related
Debt Service Reduction and any Deficient Valuation that affects
the amount of
the monthly payment due on such Mortgage Loan.
Section 302 Requirements: Any rules or regulations promulgated
pursuant to
the Sarbanes-Oxley Act of 2002 (as such may be amended from time
to time).
Seller: Merrill Lynch Credit Corporation, a Delaware
corporation.
Senior Certificate: Any one of the Class A-1, Class A-2, Class
X-A, Class
X-B or Class A-R Certificates.
Senior Percentage: Except as provided in this definition, for
each
Mortgage Pool with respect to any Distribution Date before
January 2015, 100%.
The Senior Percentage for each Mortgage Pool for any
Distribution Date occurring
(i) before the Distribution Date in January 2015, but in or
after January 2008
on which the Two Times Test is satisfied, or (ii) in or after
January 2015, is
the related Pro Rata Senior Percentage. If the Two Times Test is
satisfied with
respect to any Distribution Date prior to the Distribution Date
in January 2008,
the Senior Percentage for such Mortgage Pool is the Pro Rata
Senior Percentage
plus 50% of an amount equal to 100% minus the related Pro Rata
Senior
Percentage. With respect to any Distribution Date after the
Senior Termination
Date, the Senior Percentage for such Mortgage Pool will equal
zero. If on any
Distribution Date the allocation to the Senior Certificates of
the related
Certificate Group then entitled to distributions of principal of
full and
partial principal prepayments and other amounts in the
percentage required above
would reduce the sum of the Class Principal Amounts of those
Certificates to
below zero, the Senior Percentage for such Distribution Date
shall be limited to
the percentage necessary to reduce such Class Principal Amounts
to zero.
Senior Prepayment Percentage: With respect to any Distribution
Date,
during the ten years beginning on the first Distribution Date,
100%. Except as
provided herein, the related Senior Prepayment Percentage for
each Mortgage Pool
and any Distribution Date occurring on or after the tenth
anniversary of the
first Distribution Date shall be as follows: (i) from January
2015 through
December 2015, the Senior Percentage plus 70% of the Subordinate
Percentage for
that Distribution Date; (ii) from January 2016 through December
2016, the Senior
Percentage plus 60% of the Subordinate Percentage for that
Distribution Date;
(iii) from January 2017 through December 2017, the Senior
Percentage plus 40% of
the Subordinate Percentage for that Distribution Date; (iv) from
January 2018
through December 2018, the related Senior Percentage plus 20% of
the Subordinate
Percentage for that Distribution Date; and (v) from and after
January 2019, the
Senior Percentage for that Distribution Date; provided, however,
that there
shall be no reduction in the Senior Prepayment Percentage for a
Mortgage Pool
unless both Step Down Conditions are satisfied; and provided,
further, that if
on any such Distribution Date the Pro Rata Senior Percentage
exceeds the initial
Pro Rata Senior Percentage, the Senior Prepayment Percentage for
a Mortgage Pool
for that Distribution Date shall again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two
Times Test
is satisfied, the Senior Prepayment Percentage for a Mortgage
Pool shall equal
the related Senior Percentage for such Distribution Date. In
addition, if on any
Distribution Date the allocation to the Senior Certificates of
the related
Certificate Group then entitled to distributions of principal of
full and
partial principal prepayments and other amounts in the
percentage required above
would reduce
30
<PAGE>
the sum of the Class Principal Amounts of those Certificates to
below zero, the
Senior Prepayment Percentage for a Mortgage Pool for such
Distribution Date
shall be limited to the percentage necessary to reduce the
related Class
Principal Amounts to zero.
Senior Principal Distribution Amount: With respect to any
Mortgage Pool
and Distribution Date, the sum of:
(1) the related Senior Percentage of all amounts described in
clause
(a) of the definition of "Principal Distribution Amount" for
that
Distribution Date;
(2) with respect to each Mortgage Loan in the related Mortgage
Pool
which became a Liquidated Mortgage Loan during the related
Prepayment
Period, the lesser of
(x) the related Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and
(y) the related Senior Prepayment Percentage of the amount
of
the Net Liquidation Proceeds allocable to principal received
with
respect to that Mortgage Loan; and
(3) the related Senior Prepayment Percentage of the amounts
described in clauses (b), (c), (d), (f), (g), (h) and (i) of
the
definition of "Principal Distribution Amount".
Senior Termination Date: For each Certificate Group, the
Distribution Date
when the aggregate of the Class Certificate Principal Balances
of that Group has
been reduced to zero.
Servicer: Cendant and its successors and assigns.
Servicer Advance: The outstanding moneys that have been advanced
by the
Servicer from its funds in connection with its servicing of a
Mortgage Loan
(including, but not limited to, taxes, ground rents,
assessments, insurance
premiums, release fees, foreclosure and bankruptcy fees and
expenses, and other
expenses) (i) that have been made by the Servicer in accordance
with the terms
and provisions herein, (ii) that are recoverable through
Liquidation Proceeds
and/or Insurance Proceeds, or that are made at the direction of
the Seller or to
preserve its security interest in the related Mortgaged Property
and (iii) for
which the Servicer has a right of reimbursement.
Servicing Fee: As to any Distribution Date and each Mortgage
Loan, an
amount equal to the product of (a) one-twelfth of the Servicing
Fee Rate and (b)
the outstanding principal balance of such Mortgage Loan as of
the first day of
the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and
any
Distribution Date, 0.25% per annum.
Servicing Officer: Any officer of the Servicer involved in, or
responsible
for, the administration and servicing of the Mortgage Loans
whose name and
facsimile signature appear on a list of servicing officers
furnished to the
Trustee by the Servicer on the Closing Date and attached hereto
as Exhibit M, as
such list may from time to time be amended.
Servicing Transfer Costs: As defined in Section 6.14(b).
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<PAGE>
Six-Month LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate
that
adjusts in accordance with LIBOR for six-month U.S. dollar
deposits.
Startup Day: The day designated as such pursuant to Section
10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the unpaid
principal balance of such Mortgage Loan as of such Due Date as
specified in the
amortization schedule at the time relating thereto (before any
adjustment to
such amortization schedule by reason of any moratorium or
similar waiver or
grace period) after giving effect to any previous Principal
Prepayments and
Liquidation Proceeds allocable to principal and to the payment
of principal due
on such Due Date and irrespective of any delinquency in payment
by the related
Mortgagor.
Step Down Conditions: As of the first Distribution Date as to
which any
decrease in any Senior Prepayment Percentage applies, (i) the
outstanding Stated
Principal Balance of all Mortgage Loans 60 days or more
Delinquent (including
Mortgage Loans in bankruptcy, REO and foreclosure) (averaged
over the preceding
six month period), as a percentage of the aggregate of the Class
Principal
Amounts of the Classes of Subordinate Certificates on such
Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses
with respect to
the Mortgage Loans do not exceed (a) with respect to each
Distribution Date from
January 2015 through December 2015, 30% of the Original
Subordinate Principal
Amount, (b) with respect to each Distribution Date from January
2016 through
December 2016, 35% of the Original Subordinate Principal Amount,
(c) with
respect to each Distribution Date from January 2017 through
December 2017, 40%
of the Original Subordinate Principal Amount, (d) with respect
to each
Distribution Date from January 2018 through December 2018, 45%
of the Original
Subordinate Principal Amount and (e) with respect to each
Distribution Date from
and after January 2019, 50% of the Original Subordinate
Principal Amount.
Subordinate Certificate: Any of the Class B-1, Class B-2, Class
B-3, Class
B-4, Class B-5 or Class B-6 Certificates.
Subordinate Certificate Writedown Amount: The amount described
in Section
5.03(b)(iii).
Subordinate Class Percentage: As to any Distribution Date and
any Class of
Subordinate Certificates, a fraction, expressed as a percentage,
the numerator
of which is the Class Principal Amount of such Class on such
date, and the
denominator of which is the aggregate Class Principal Amount of
all Classes of
Subordinate Certificates on such date.
Subordinate Net WAC: For any Distribution Date, the weighted
average of
the Pool 1 Net WAC and the Pool 2 Net WAC, weighted on the basis
of the Pool
Subordinate Amounts for Pool 1 and Pool 2, respectively, for
such Distribution
Date.
Subordinate Percentage: With respect to each Mortgage Pool and
any
Distribution Date, the difference between 100% and the related
Senior Percentage
for such Mortgage Pool for such Distribution Date.
Subordinate Prepayment Percentage: With respect to any
Distribution Date
and for any Mortgage Pool, the difference between 100% and the
related Senior
Prepayment Percentage for such Mortgage Pool for that
Distribution Date.
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<PAGE>
Subordinate Principal Distribution Amount: With respect to
any
Distribution Date and each Mortgage Pool, an amount equal to the
sum of:
(1) the related Subordinate Percentage of all amounts described
in
clause (a) of the definition of "Principal Distribution Amount"
for that
Distribution Date;
(2) with respect to each Mortgage Loan in the related Mortgage
Pool
that became a Liquidated Mortgage Loan during the related
Prepayment
Period the amount of the Net Liquidation Proceeds allocated to
principal
received with respect thereto remaining after application
thereof pursuant
to clause (2) of the definition of "Senior Principal
Distribution Amount"
for that Distribution Date, up to the Subordinate Percentage of
the Stated
Principal Balance of such Mortgage Loan; and
(3) the related Subordinate Prepayment Percentage of all
amounts
described in clauses (b), (c), (d), (f), (g), (h) and (i) of
the
definition of "Principal Distribution Amount" for that Mortgage
Pool and
that Distribution Date;
minus the sum of:
any Principal Transfer Amount paid from the Available
Distribution
Amount of the Related Certificate Group to an
Undercollateralized Group;
and
the amount of principal distributions made to the Senior
Certificates pursuant to Section 5.02(h);
Subsequent Recovery: The amount, if any, recovered by the
Servicer with
respect to a Liquidated Mortgage Loan with respect to which a
Realized Loss has
been incurred after liquidation and disposition of such Mortgage
Loan.
Substitution Amount: As defined in the second paragraph of
Section
2.04(b).
Tax Matters Person: The "tax matters person" as specified in the
REMIC
Provisions which shall initially be the Holder of the Class A-R
Certificate.
Telerate Page 3750: The display currently so designated as "Page
3750" on
the Bridge Telerate Service (or such other page selected by the
Trustee as may
replace Page 3750 on that service for the purpose of displaying
daily comparable
rates on prices).
Trust Fund: The corpus of the trust created pursuant to this
Agreement,
consisting of (i) the Mortgage Loans, including the right to all
payments of
principal and interest received on or with respect to the
Mortgage Loans on and
after the Cut-off Date (other than Scheduled Payments due on or
before such
date), and all such payments due after such date but received
prior to such date
and intended by the related Mortgagors to be applied after such
date; (ii) all
of the Depositor's right, title and interest in and to all
amounts from time to
time credited to and the proceeds of the Distribution Account,
any Custodial
Accounts or any Escrow Accounts established with respect to the
Mortgage Loans;
(iii) all of the Depositor's rights under the Mortgage Loan
Purchase and Sale
Agreement and the Mortgage Loan Purchase Agreement; (iv) all of
the Depositor's
right, title or interest in REO Property and the proceeds
thereof; (v) all of
the Depositor's rights under any Insurance Policies relating to
the Mortgage
Loans; (vi) all proceeds of the conversion, voluntary or
involuntary, of any of
the foregoing into cash or other liquid assets, including
without limitation,
all Insurance Proceeds, Liquidation Proceeds and
33
<PAGE>
condemnation awards; and (vii) the Depositor's security interest
in any
collateral pledged to secure the Mortgage Loans, including the
Mortgaged
Properties and any Additional Collateral relating to the
Additional Collateral
Mortgage Loans, including, but not limited to, any pledge,
control and guaranty
agreements and the Limited Purpose Surety Bond and any proceeds
of the
foregoing.
Trustee: Wells Fargo Bank, N.A. and any Person succeeding the
Trustee
hereunder, or if any separate trustee or any co-trustee shall be
appointed as
herein provided, then such separate trustee and such co-trustee,
as the case may
be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the
Mortgage
Documents to be retained in the custody and possession of the
Trustee.
Two Times Test: As to any Distribution Date, (i) the Aggregate
Subordinate
Percentage is at least two times the Aggregate Subordinate
Percentage as of the
Closing Date; (ii) the aggregate of the Stated Principal
Balances of all
Mortgage Loans Delinquent 60 days or more (including Mortgage
Loans in
bankruptcy, REO and foreclosure) (averaged over the preceding
six-month period),
as a percentage of the aggregate of the Class Principal Amount
of the
Subordinate Certificates on such Distribution Date, does not
equal or exceed
50%; and (iii) cumulative Realized Losses with respect to the
Mortgage Loans do
not exceed 20% of the Original Subordinate Principal Amount.
UCC: The Uniform Commercial Code as enacted in the relevant
jurisdiction.
Undercollateralized Group: With respect to any Distribution
Date, and any
Certificate Group, the aggregate Class Principal Amount of such
Certificate
Group is greater than the aggregate Stated Principal Balance of
the Mortgage
Loans in the related Mortgage Pool immediately prior to such
Distribution Date.
Underwriters: Merrill Lynch, Pierce, Fenner & Smith
Incorporated and
Countrywide Securities Corporation.
Underwriter's Exemption: Prohibited Transaction Exemption
("PTE") 90-29
(Exemption Application No. D-8019, 55 Fed. Reg. 21459 (1990)) as
amended, or any
substantially similar administrative exemption granted by the
U.S. Department of
Labor to an Underwriter.
Underwriting Agreement: The underwriting agreement, dated
February 28,
2003 and the terms agreement, dated December 23, 2004, each
between the
Depositor and the Underwriters, referred to collectively.
Underwriting Standards: As to each Mortgage Loan, the Seller's
or
Originator's written underwriting guidelines in effect as of the
origination
date of such Mortgage Loan.
Uniform Commercial Code: The Uniform Commercial Code as in
effect in any
applicable jurisdiction from time to time.
Unpaid Basis Risk Shortfall: With respect to any Distribution
Date and any
Class of LIBOR Certificates, the aggregate of all Basis Risk
Shortfalls with
respect to such Certificate remaining unpaid from previous
Distribution Dates,
plus interest accrued thereon at the applicable Certificate
Interest Rate
determined without regard to clause (ii) of the definition
therefor to the
extent not paid on prior Distribution Dates.
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Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Class A-1 Interest: An uncertificated interest
in the
Upper Tier REMIC having the same characteristics as the Class
A-1 Certificates,
but without the right to receive payments in respect of Basis
Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class A-2 Interest: An uncertificated interest
in the
Upper Tier REMIC having the same characteristics as the Class
A-2 Certificates,
but without the right to receive payments in respect of Basis
Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class B-1 Interest: An uncertificated interest
in the
Upper Tier REMIC having the same characteristics as the Class
B-1 Certificates,
but without the right to receive payments in respect of Basis
Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class B-2 Interest: An uncertificated interest
in the
Upper Tier REMIC having the same characteristics as the Class
B-2 Certificates,
but without the right to receive payments in respect of Basis
Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class B-3 Interest: An uncertificated interest
in the
Upper Tier REMIC having the same characteristics as the Class
B-3 Certificates,
but without the right to receive payments in respect of Basis
Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Regular Interest: Each of the REMIC Components,
the Upper
Tier REMIC Class A-1 Interest, the Upper-Tier REMIC Class A-2
Interest, the
Upper Tier REMIC Class B-1 Interest, the Upper-Tier REMIC Class
B-2 Interest,
the Upper-Tier REMIC Class B-3 Interest, the Class B-4
Certificates, the Class
B-5 Certificates and the Class B-6 Certificates.
USAP Report: A report in compliance with the Uniform Single
Attestation
Program for Mortgage Bankers delivered in accordance with
Section 9.13.
Voting Interests: The portion of the voting rights of all the
Certificates
that is allocated to any Certificate for purposes of the voting
provisions of
this Agreement. At all times during the term of this Agreement,
98.00% of all
Voting Interests shall be allocated to the Class A-1, Class A-2,
Class A-R,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6
Certificates. Voting Interests shall be allocated among such
Certificates (other
than the Class A-R Certificates) based on the product of (i)
98.00% and (ii) the
fraction, expressed as a percentage, the numerator of which is
the aggregate
Class Principal Amounts for each Class then outstanding and the
denominator of
which is the Aggregate Stated Principal Balance outstanding, and
the remainder
of such percentage of Voting Interests shall be allocated to the
Class A-R
Certificates. At all times during the term of this Agreement,
2.00% of all
Voting Interests shall be allocated among the Class X-A and
Class X-B
Certificates, while they remain outstanding, in proportion to
their relative
Class Notional Amounts. Voting Interests shall be allocated
among the
Certificates within each such Class in proportion to their
Certificate Principal
Amounts or Percentage Interests.
X-A1 Component: An interest only Component represented by the
Class X-A
Certificates which has a notional amount for any Distribution
Date equal to the
Class Principal Amount of the Class A-1 Certificates immediately
prior to such
Distribution Date and having an interest rate with respect to
any Distribution
Date (and the related Accrual Period) equal to the excess, if
any, of (i) the
Pool 1 Net WAC for such Distribution Date over (ii) the
Certificate Interest
Rate of the Class A-1 Certificates for such Distribution Date.
For purposes of
Section
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5.02(h), the X-A1 Component shall be related to the Group 1
Certificates. For
purposes of the definition of "Class Excess Interest Amount",
the X-A1 Component
shall be related to the Class A-1 Certificates.
X-A2 Component: An interest-only Component represented by the
Class X-A
Certificates which has a notional amount for any Distribution
Date equal to the
Class Principal Amount of the Class A-2 Certificates immediately
prior to such
Distribution Date and having an interest rate with respect to
any Distribution
Date (and the related Accrual Period) equal to the excess, if
any, of (i) the
Pool 2 Net WAC for such Distribution Date over (ii) the
Certificate Interest
Rate of the Class A-2 Certificates for such Distribution Date.
For purposes of
Section 5.02(h), the X-A2 Component shall be related to the
Group 2
Certificates. For purposes of the definition of "Class Excess
Interest Amount",
the X-A2 Component shall be related to the Class A-2
Certificates.
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with
respect
to any Mortgage Loan in the Trust Fund shall be made based upon
current
information as to the terms of the Mortgage Loans and reports of
payments
received from the Mortgagor on such Mortgage Loans and payments
to be made to
the Trustee as provided by the Servicer. The Trustee shall not
be required to
recompute, verify or recalculate the information supplied to it
by the Servicer.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance
of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby establish the Trust Fund
and transfer,
assign, set over, deposit with and otherwise convey to the
Trustee, without
recourse, subject to Sections 2.02 and 2.04, in trust, all the
right, title and
interest of the Depositor in and to the Trust Fund. Such
conveyance includes,
without limitation, (i) the Mortgage Loans, including the right
to all payments
of principal and interest received on or with respect to the
Mortgage Loans on
and after the Cut-off Date (other than Scheduled Payments due on
or before such
date), and all such payments due after such date but received
prior to such date
and intended by the related Mortgagors to be applied after such
date; (ii) all
of the Depositor's right, title and interest in and to all
amounts from time to
time credited to and the proceeds of the Distribution Account,
any Custodial
Accounts or any Escrow Account established with respect to the
Mortgage Loans;
(iii) all of the Depositor's rights under the Mortgage Loan
Purchase and Sale
Agreement; (iv) all of the Depositor's right, title or interest
in REO Property
and the proceeds thereof; (v) all of the Depositor's rights
under any Insurance
Policies relating to the Mortgage Loans; (vi) all proceeds of
the conversion,
voluntary or involuntary, of any of the foregoing into cash or
other liquid
assets, including, without limitation, all Insurance Proceeds,
Liquidation
Proceeds and condemnation awards; and (vii) the Depositor's
security interest in
any collateral pledged to secure the Mortgage Loans, including
the Mortgaged
Properties and any Additional Collateral relating to the
Additional Collateral
Mortgage Loans, including, but not limited to, any pledge,
control and guaranty
agreements and the Limited Purpose Surety Bond and any proceeds
of the
foregoing, to have and to hold, in trust; and the Trustee
declares that, subject
to the review provided for in Section 2.02, it has received and
shall hold the
Trust Fund, as trustee, in trust, for the benefit and use of the
Holders of the
Certificates
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and for the purposes and subject to the terms and conditions set
forth in this
Agreement, and, concurrently with such receipt, has caused to be
executed,
authenticated and delivered to or upon the order of the
Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations
evidencing the
entire ownership of the Trust Fund. Notwithstanding anything to
the contrary in
this Agreement, the Trust Fund shall not obtain title to or
beneficial ownership
of any Additional Collateral as a result of or in lieu of the
disposition
thereof or otherwise.
The foregoing sale, transfer, assignment, set-over, deposit and
conveyance
does not and is not intended to result in the creation or
assumption by the
Trustee of any obligation of the Depositor, the Seller or any
other Person in
connection with the Mortgage Loans or any other agreement or
instrument relating
thereto except as specifically set forth therein.
It is agreed and understood by the parties hereto that it is not
intended
that any Mortgage Loan be included in the Trust Fund that is a
"High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act, effective
November 27,
2003, the New Mexico Home Loan Protection Act, effective January
1, 2004 and the
Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004.
In connection with such transfer and assignment of the Mortgage
Loans, the
Depositor shall deliver to, and deposit with, or cause to be
delivered to and
deposited with, the Trustee, the documents or instruments
described in Section 2
of the Custodial Agreement with respect to each Mortgage Loan;
provided that in
Section 2a thereof, a lost note affidavit (including a copy of
the original
Mortgage Note) may be delivered in lieu of the original Mortgage
Note (each a
"Trustee Mortgage File") (the Custodial Agreement to be deemed
modified by the
foregoing) so transferred and assigned.
(b) The Depositor shall cause the Mortgage Notes with
respect
to each Mortgage Loan to be completed either (A) in blank,
without recourse, or
(B) endorsed to "Wells Fargo Bank, N.A., as Trustee of the
Merrill Lynch
Mortgage Investors Trust Series MLCC 2004-G, Mortgage
Pass-Through Certificates,
without recourse" and the Depositor shall cause Assignments of
Mortgage with
respect to each Mortgage Loan other than a Cooperative Mortgage
Loan to be
completed either (A) in blank or (B) to "Wells Fargo Bank, N.A.,
as Trustee of
the Merrill Lynch Mortgage Investors Trust Series MLCC 2004-G,
Mortgage
Pass-Through Certificates," within 30 days of the Closing Date
for purpose of
their recording; provided, however, that such Assignments of
Mortgage need not
be recorded unless required in writing by the Rating Agencies;
provided,
further, that with respect to each MERS Mortgage Loan where MERS
is not the
Mortgagee of record, the original Assignment of Mortgage showing
MERS as the
assignee of the Mortgage, with the evidence of recording thereon
or copies
thereof certified by an officer of the Depositor to have been
submitted for
recordation, shall be delivered to the Trustee.
If any Mortgage has been recorded in the name of MERS or its
designee, no
Assignment of Mortgage in favor of the Trustee will be required
to be prepared
or delivered and instead, the Servicer shall take all actions as
are necessary
to cause the Trustee to be shown as the owner of the related
Mortgage Loan on
the records of MERS for the purpose of the system of recording
transfer of
beneficial ownership of mortgages maintained by MERS.
(c) In instances where a title insurance policy is required
to
be delivered to the Trustee and is not so delivered, the
Depositor will provide
a copy of such title insurance policy to the Trustee, as
promptly as practicable
after the execution and delivery hereof, but in any case within
270 days of the
Closing Date.
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(d) For Mortgage Loans (if any) that have been prepaid in
full
after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of
delivering the above Trustee Mortgage File, shall deliver to the
Trustee an
Officer's Certificate which shall include a statement to the
effect that all
amounts received in connection with such prepayment that are
required to be
deposited in the Distribution Account pursuant to Section 4.01
have been so
deposited. All original documents that are not delivered to the
Trustee shall be
held by the Servicer in trust for the benefit of the Trustee and
the
Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee; Review of
Documentation
for Trust Fund.
(a) The Trustee, by execution and delivery hereof,
acknowledges receipt by it of the Trustee Mortgage Files
pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to
review thereof
as provided herein. Upon receipt by the Trustee of each Trustee
Mortgage File,
the Trustee shall review each Trustee Mortgage File in
accordance with the
review procedures set forth in Section 2 of Amendment No. 1 to
the Custodial
Agreement.
In making such verifications, the Trustee may rely conclusively
on the
Mortgage Loan Schedule and the documents constituting the
Trustee Mortgage File,
and the Trustee shall have no obligation to independently verify
the validity,
enforceability, recordability, sufficiency, due authorization or
genuineness of
any document in any Trustee Mortgage File or any Mortgage Loan
hereunder, nor
the collectibility, insurability, effectiveness or suitability
of any Mortgage
Loan hereunder. The Trustee shall prepare an initial
certification to be
delivered to the Depositor, the Seller and the Servicer on the
Closing Date in
the form annexed hereto as Exhibit K (the "Initial
Certification") with respect
to the Mortgage Loans (other than any Mortgage Loan paid in full
or any Mortgage
Loan specifically identified on the Schedule of Exceptions
attached to the
Initial Certification (the "Schedule of Exceptions") as not
covered by such
Initial Certification) listed on the Mortgage Loan Schedule. If
the Trustee
determines from such verification that any discrepancy or
deficiency exists with
respect to a Trustee Mortgage File, the Trustee shall note such
omission,
discrepancy or deficiency on the Schedule of Exceptions attached
to the Initial
Certification, and shall deliver a copy (which shall be
electronic, if
requested) of the Schedule of Exceptions to the Depositor on the
Closing Date.
During the life of the Mortgage Loans (while subject to this
Agreement), in the
event the Trustee discovers any defect with respect to any
Trustee Mortgage
File, the Trustee shall give written specification of such
defect to the
Depositor. Except as specifically provided above, the Trustee
shall be under no
duty to review, inspect or examine such documents to determine
that any of them
are enforceable or appropriate for their prescribed purpose.
(b) If in the course of the review described in paragraph
(a)
of this Section 2.02 the Trustee discovers any document or
documents
constituting a part of a Trustee Mortgage File that is missing,
does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn
or otherwise
physically altered) or appears to be unrelated to the Mortgage
Loans identified
in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, upon
discovering such Material Defect shall promptly identify the
Mortgage Loan to
which such Material Defect relates to the Depositor, the Seller
and the
Servicer. Within 90 days of its receipt of such notice (but in
no case prior to
the 270th day following the Closing Date), the Depositor shall
be required to
cure such Material Defect (and, in such event, the Depositor
shall provide the
Trustee with an Officer's Certificate confirming that such cure
has been
effected). If the Servicer notifies the Depositor and the
Trustee in writing
that (i) a loss has occurred and (ii) such loss relates to a
Mortgage Loan for
which the Trustee previously identified a Material Defect or
for
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<PAGE>
which the Servicer has identified a Material Defect and the
Depositor has not
cured such Material Defect, then the Depositor shall repurchase
such Mortgage
Loan at the Purchase Price therefor in the event that such loss
would, if such
Mortgage Loan is not repurchased by the Depositor, constitute a
Realized Loss
and such loss is attributable to the failure of the Depositor to
have cured such
Material Defect. A loss shall be deemed to be attributable to
the failure of the
Depositor to cure a Material Defect if, as determined by the
Depositor, upon
mutual agreement with the Trustee each acting in good faith,
absent such
Material Defect, such loss would not have been incurred. Within
the two-year
period following the Closing Date, the Depositor may, in lieu of
repurchasing a
Mortgage Loan pursuant to this Section 2.02(b), substitute for
such Mortgage
Loan a Replacement Mortgage Loan subject to the provisions of
Section 2.04.
(c) Within 270 days following the Closing Date, the Trustee
shall deliver to the Depositor, the Seller and the Servicer, a
final
certification substantially in the form attached as Exhibit L
(the "Final
Certification") evidencing the completeness of the Trustee
Mortgage Files in its
possession or control, with any exceptions noted on the Schedule
of Exceptions
attached to the Final Certification.
(d) Nothing in this Agreement shall be construed to
constitute
an assumption by the Trust Fund, the Trustee or the
Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan
or to any
Mortgagor.
(e) Upon execution of this Agreement, the Depositor hereby
delivers to the Trustee and the Trustee acknowledges receipt of
the Mortgage
Loan Purchase and Sale Agreement.
Section 2.03. Representations and Warranties of the Depositor
and the
Servicer.
(a) The Depositor hereby represents and warrants to the
Servicer and to the Trustee , for the benefit of the
Certificateholders as of
the Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its
creation
and existence and has full corporate power and authority to own
its
property, to carry on its business as presently conducted, to
enter
into and perform its obligations under this Agreement, and to
create
the trust pursuant hereto;
(ii) 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; 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 certificate of incorporation or bylaws of
the
Depositor;
(iii) 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
39
<PAGE>
governmental authority or agency, except such as has been
obtained,
given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding
obligation
of the Depositor enforceable against it in accordance with its
terms
except as such enforceability may be subject to (A)
applicable
bankruptcy and insolvency laws and other similar laws affecting
the
enforcement of the rights of creditors generally and (B)
general
principles of equity regardless of whether such enforcement
is
considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or,
to
the knowledge of the Depositor, threatened or likely to be
asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this
Agreement or
(B) 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 it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner
of
record and holder of each Mortgage Loan, and the Depositor had
good
and marketable title thereto, and had full right to transfer
and
sell each Mortgage Loan to the Trustee free and clear, subject
only
to (1) liens of current real property taxes and assessments not
yet
due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by
statute,
(2) covenants, conditions and restrictions, rights of way,
easements
and other matters of public record as of the date of recording
of
such Mortgage acceptable to mortgage lending institutions in
the
area in which the related Mortgaged Property is located and
specifically referred to in the lender's title insurance policy
or
attorney's opinion of title and abstract of title delivered to
the
Originator of such Mortgage Loan, and (3) such other matters
to
which like properties are commonly subject which do not,
individually or in the aggregate, materially interfere with
the
benefits of the security intended to be provided by the
Mortgage, of
any encumbrance, equity, participation interest, lien,
pledge,
charge, claim or security interest, and had full right and
authority, subject to no interest or participation of, or
agreement
with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement;
(vii) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code
(the
"UCC"), in the Mortgage Loans in favor of the Trustee, which
security interest is prior to all other liens, and is
enforceable as
such against creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within
the
meaning of the applicable UCC;
40
<PAGE>
(ix) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged,
assigned,
sold, granted a security interest in, or otherwise conveyed any
of
the Mortgage Loans. The Depositor has not authorized the filing
of
and is not aware of any financing statement against the
Depositor
that includes a description of the collateral covering the
Mortgage
Loans other than a financing statement relating to the
security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax
lien
filings against the Depositor;
(x) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned
or
otherwise conveyed to any Person other than the Trustee; and
(xi) The Depositor has received all consents and approvals
required by the terms of the Mortgage Loans to convey the
Mortgage
Loans hereunder to the Trustee;
(xii) As of the Closing Date, each Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the
Code (without regard to Treasury Regulations Section
1.860G-2(f)) or
any similar rule that provides that a defective obligation is
a
qualified mortgage for a temporary period);
(xiii) As of the Closing Date, no Mortgage Loan provides for
interest other than at either (x) a single fixed rate in
effect
throughout the term of the Mortgage Loan or (y) a single
"variable
rate" (within the meaning of Treasury Regulations Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage
Loan;
(xiv) As of the Closing Date, no Mortgage is the subject of
pending or final foreclosure proceedings; and
(xv) As of the Closing Date, the Depositor would not
initiate
foreclosure proceedings with respect to any Mortgage Loan based
on
such Mortgage Loan's delinquency status prior to the next
scheduled
payment date for such Mortgage Loan.
The foregoing representations made in this Section 2.03 by the
Depositor
shall survive the termination of this Agreement and shall not be
waived by any
party hereto
(b) The Servicer hereby represents, warrants, and covenants
to
the Depositor and to the Trustee, for the benefit of the
Certificateholders as
of the Closing Date that:
(i) The Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
New
Jersey. The Servicer has in full force and effect (without
notice of
possible suspension, revocation or impairment) all required
qualifications, permits, approvals, licenses, and registrations,
or
exemption therefrom, to conduct all activities in all
jurisdictions
in which its activities with respect to the Mortgage Loans
require
it to be qualified or licensed;
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(ii) The Servicer has all requisite corporate power,
authority
and capacity to carry on its business as it is now being
conducted,
to execute and deliver this Agreement, and to perform all of
its
obligations hereunder. The Servicer does not believe, nor does
it
have any cause or reason to believe, that it cannot perform each
and
every covenant contained in this Agreement;
(iii) The execution, delivery and performance of this
Agreement by the Servicer and consummation of the
transactions
contemplated hereby have been duly and validly authorized by
all
necessary corporate, shareholder or other action by the
Servicer;
this Agreement has been duly and validly executed and delivered
by
the Servicer; and this Agreement is a valid and legally
binding
agreement of the Servicer, enforceable against the Servicer
in
accordance with its respective terms, subject to bankruptcy,
insolvency and similar laws affecting generally the enforcement
of
creditors' rights and the discretion of a court to grant
specific
performance of contracts;
(iv) Neither the execution and delivery of this Agreement,
nor
the consummation of the transactions contemplated hereby,
nor
compliance with their respective terms and conditions shall
(a)
violate, conflict with, result in the breach of, constitute
a
default under, be prohibited by or require any additional
approval
under any terms, conditions or provisions of the Servicer's
articles
of incorporation or by-laws or any other similar corporate
or
organizational document of the Servicer; any mortgage,
indenture,
deed of trust, loan or credit agreement or other agreement
or
instrument to which the Servicer is now a party or by which it
is
bound; or any law, ordinance, rule, regulation, order, judgment
or
decree of any governmental authority applicable to the Servicer;
or
(b) result in the creation or imposition of any lien, charge
or
encumbrance of any material nature upon any of the properties
or
assets of the Servicer;
(v) The Servicer holds all licenses, approvals, permits and
other authorizations, or exemptions therefrom, required
under
applicable law to assume responsibility for servicing the
Mortgage
Loans;
(vi) There is no litigation, claim, demand, proceeding or
governmental investigation existing or pending, or to the
knowledge
of the Servicer, threatened, nor is there any order, injunction
or
decree outstanding against or relating to the Servicer that
could
(i) have a material adverse effect upon the performance by
the
Servicer of its obligations under this Agreement or (ii) to
the
Servicer's knowledge, result in any material loss or liability
to
Depositor, the Trustee, the Trust Fund or the Seller. Further,
to
the Servicer's knowledge, there is no meritorious basis for any
such
litigation, claim, demand, proceeding, or governmental
investigation;
(vii) The Servicer has been approved by GNMA, Fannie Mae and
FHLMC and will remain approved as an "eligible seller/servicer"
of
residential mortgage loans as provided in GNMA, Fannie Mae, or
FHLMC
guidelines and in good standing. The Servicer has not received
any
notification from GNMA, Fannie Mae or FHLMC that the Servicer is
not
in compliance with the requirements of the approved
"seller/servicer" status. The Servicer is a mortgagee approved
by
the Secretary of HUD pursuant to Section 203 and 211 of the
National
Housing Act. The Servicer has not received any notification
from
42
<PAGE>
HUD that the Servicer is not in compliance with the requirements
of
the approved mortgagee status;
(viii) The servicing practices to be used by the Servicer
under this Agreement are, and shall remain, in all material
respects
in compliance with Accepted Servicing Practices, including
without
limitation, all federal, state and local laws, rules, all
regulations and requirements in connection therewith, and Fannie
Mae
guidelines, as applicable;
(ix) The Servicer has not received written notice from or on
behalf of FHA, HUD, FDIC, Fannie Mae, FHLMC or GNMA, advising
the
Servicer of its failure to comply with applicable servicing
or
claims procedures, or resulted in a request for repurchase
of
mortgage loans or indemnification in connection with any
mortgage
loans;
(x) The Servicer has in place a contingency plan that will
enable it to perform its obligations under this Agreement in
all
material respects, at another location within five (5) Business
Days
in the event its primary location is rendered inoperative as
a
result of a natural or other disaster or emergency;
(xi) The Servicer maintains and shall maintain, in good
standing, all licenses and approvals necessary to service
the
Mortgage Loans and maintains and shall at all times maintain
the
capital requirements imposed by the licensing or approving
entities
having jurisdiction over the Servicer. The Servicer has
filed
applications for all applicable licenses and qualifications to
do
business and to service the Mortgage Loans in the U.S.
Virgin
Islands;
(xii) The Servicer maintains and shall at all times maintain
error and omissions and fidelity insurance coverage of the type
and
in the amounts required by Fannie Mae;
(xiii) The Servicer has, and shall at all times maintain
during the term of this Agreement, sufficient systems, including
but
not limited to the Servicer's EDP, and trained and
experienced
personnel in place to perform its obligations under this
Agreement;
(xiv) For so long as, and to the extent that, the Servicer
services the Mortgage Loans, the Servicer will continue to
comply
with each applicable federal, state, or local, law, statute,
and
ordinance, and any rule, regulation, or order issued
thereunder,
pertaining to the subject matter of this Agreement, including,
but
not limited to, usury, RESPA, Consumer Credit Reporting Act,
Equal
Credit Opportunity Act, Federal Deposit Insurance
Corporation
Improvement Act, Regulation B, Fair Credit Reporting Act, Fair
Debt
Collection Practices Act, Fair Housing Act, Truth in Lending Act
and
Regulation Z, Flood Disaster Protection Act of 1973, and any
applicable regulations related thereto, and such other fair
housing,
anti-redlining, equal credit opportunity, truth-in-lending,
real
estate settlement procedures, fair credit reporting, and every
other
prohibition against unlawful discrimination in residential
mortgage
lending or governing consumer credit, and all state consumer
credit
statutes and regulations, as amended. In the event the Depositor
or
the Trustee has a reasonable good faith belief in the
Servicer's
non-compliance with this representation and
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warranty and upon the Depositor's or the Trustee's written
request,
the Servicer shall deliver to the Depositor or the Trustee
reasonable evidence of compliance with any of the requirements
of
this representation and warranty; and
(xv) Neither the Servicer, its parent, nor any of its
subsidiaries is in bankruptcy, receivership or conservatorship.
The
Servicer has the requisite financial resources and ability to
meet
its obligations under this Agreement, including, but not limited
to,
any and all indemnification obligations,
Within 60 days of the earlier of either discovery by or notice
to the
Servicer of any breach of a representation or warranty set forth
in this Section
2.03(B) which materially and adversely affects the ability of
the Servicer to
perform its duties and obligations under this Agreement or
otherwise materially
and adversely affects the value of the Mortgage Loans, the
Mortgaged Property or
the priority of the security interest on such Mortgaged
Property, the Servicer
shall use its best efforts promptly to cure such breach in all
material respects
and, if such breach cannot be cured, the Servicer shall, at the
Trustee's
option, assign the Servicer's rights and obligations under this
Agreement (or
respecting the affected Mortgage Loans) to a successor servicer
selected by the
Depositor with the prior consent and approval of the Trustee.
Such assignment
shall be made in accordance with this Agreement.
Section 2.04. Discovery of Breach; Repurchase or Substitution of
Mortgage
Loans.
(a) Pursuant to Sections 3(a) and 3(b) of the Mortgage Loan
Purchase and Sale Agreement, the Seller has made certain
representations and
warranties as to the characteristics of the Mortgage Loans (such
representations
and warranties are set out in full in Schedule B of this
Agreement) as of the
Closing Date and the conveyance thereof from the Seller to the
Depositor, for
the benefit of the Trustee and the Certificateholders, and the
Seller has agreed
to comply with the provisions of this Section 2.04 in respect of
a breach of any
of such representations and warranties.
It is understood and agreed that (i) the representations and
warranties of
the Depositor and the Servicer set forth in Section 2.03 and
(ii) the
representations and warranties of the Seller set forth in
Sections 3(a) and 3(b)
of the Mortgage Loan Purchase and Sale Agreement shall survive
delivery of the
Trustee Mortgage Files and the Assignment of Mortgage of each
Mortgage Loan to
the Trustee and shall continue throughout the term of this
Agreement. Upon
discovery (i) by the Depositor, the Seller, the Servicer or the
Trustee of a
breach of any representation or warranty made by the Depositor
under Section
2.03 which materially adversely affects the value of a Mortgage
Loan or the
interest therein of the Certificateholder (a "Defective Mortgage
Loan"), or (ii)
by the Depositor or the Seller of the breach by the Seller of
any representation
or warranty under the Mortgage Loan Purchase and Sale Agreement
in respect of
any Mortgage Loan, which breach results in the Mortgage Loan
being a "Defective
Mortgage Loan" (each of such parties hereby agreeing to give
written notice of
such breach to the Trustee and the other of such parties), the
Trustee, or its
designee, shall promptly notify the Depositor in writing of such
breach and
request that the Depositor cure or cause the cure of such breach
within 90 days
from the date that the Depositor discovered or was notified of
such breach, and
if the Depositor does not cure such breach in all material
respects during such
period, the Trustee shall (i) in the case of an uncured breach
under Section
2.03, cause the Depositor to repurchase such Defective Mortgage
Loan at the
Purchase Price and (ii) in the case of an uncured breach by the
Seller under the
Mortgage Loan Purchase and Sale Agreement, cause the Depositor
to enforce the
Seller's obligation under the Mortgage Loan Purchase and Sale
Agreement to
repurchase that Defective Mortgage Loan from the Trust Fund at
the Purchase
Price, in each case on or prior to
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the Determination Date following the expiration of such 90-day
period (subject
to Section 2.04(b) below); provided, however, that, in
connection with any such
breach under clause (ii) above that could not reasonably have
been cured within
such 90-day period, if the Seller shall have commenced to cure
such breach
within such 90-day period and, if the defective Mortgage Loan
qualifies as a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code
following such 90-day period, the Seller shall be permitted to
proceed
thereafter diligently and expeditiously to cure the same within
an additional
90-day period. The Purchase Price for the repurchased Defective
Mortgage Loan
shall be deposited in the related Distribution Account, and the
Trustee, or its
designee, upon receipt of such deposit and two copies of a
Request for Release
with respect to such Defective Mortgage Loan, shall release to
the Seller or the
Depositor, as applicable, the related Trustee Mortgage File and
shall execute
and deliver such instruments of transfer or assignment, in each
case without
recourse, representation or warranties, as either party shall
furnish to it and
as shall be necessary to vest in such party any Defective
Mortgage Loan released
pursuant hereto and the Trustee, or its designee, shall have no
further
responsibility with regard to such Trustee Mortgage File (it
being understood
that the Trustee shall have no responsibility for determining
the sufficiency of
such assignment for its intended purpose). In lieu of
repurchasing any such
Defective Mortgage Loan as provided above, the Seller may cause
such Defective
Mortgage Loan to be removed from the Trust Fund (in which case
it shall become a
Deleted Mortgage Loan) and substitute one or more Replacement
Mortgage Loans in
the manner and subject to the limitations set forth in Section
2.04(b) below. It
is understood and agreed that the obligation of the Seller (or
the Depositor, if
applicable) to cure or to repurchase (or to substitute for) any
Mortgage Loan as
to which a breach has occurred and is continuing shall
constitute the sole
remedy against the Seller (or the Depositor, if applicable)
respecting such
breach available to the Trustee on behalf of the
Certificateholders. With
respect to the representations and warranties described in
Schedule B which are
made to the best of the Seller's knowledge, if it is discovered
by any of the
Depositor, the Seller or the Trustee that the substance of such
representation
and warranty is inaccurate and such inaccuracy materially and
adversely affects
the value of the related Mortgage Loan, then notwithstanding the
Seller's lack
of knowledge with respect to the substance of such
representation and warranty,
such inaccuracy shall be deemed a breach of the applicable
representation or
warranty.
(b) Any substitution of Replacement Mortgage Loans for
Deleted
Mortgage Loans made pursuant to Section 2.04(a) above must be
effected prior to
the last Business Day that is within two years after the Closing
Date. As to any
Deleted Mortgage Loan for which the Seller substitutes a
Replacement Mortgage
Loan or Loans, such substitution shall be effected by delivering
to the Trustee
for such Replacement Mortgage Loan or Loans, the Mortgage Note,
the Mortgage,
the Assignment to the Trustee, and such other documents and
agreements, with all
necessary endorsements thereon, together with an Officers'
Certificate stating
that each such Replacement Mortgage Loan satisfies the
definition thereof and
specifying the Substitution Amount (as described below), if any,
in connection
with such substitution. The Trustee shall acknowledge receipt
for such
Replacement Mortgage Loan and, within 45 days thereafter, shall
review such
Mortgage Documents as specified in this Agreement under Section
2.02(a) and
deliver to the Depositor, with respect to such Replacement
Mortgage Loans, a
certification substantially in the form of a revised Initial
Certification, with
any exceptions noted thereon. Within one year of the date of
substitution, the
Trustee shall deliver to the Depositor a certification
substantially in the form
of a revised Final Certification, with respect to such
Replacement Mortgage
Loans, with any exceptions noted thereon. Monthly Payments due
with respect to
Replacement Mortgage Loans in the month of substitution shall
not be included as
part of the Trust Fund and shall be retained by the Seller. For
the month of
substitution, distributions to Certificateholders shall reflect
the collections
and recoveries in respect of such Deleted Mortgage in the Due
Period preceding
the month of substitution and the Seller shall thereafter be
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entitled to retain all amounts subsequently received in respect
of such Deleted
Mortgage Loan. Upon such substitution, such Replacement Mortgage
Loan shall
constitute part of the Trust Fund and shall be subject in all
respects to the
terms of this Agreement and the Mortgage Loan Purchase and Sale
Agreement,
including all representations and warranties thereof included in
the Mortgage
Loan Purchase and Sale Agreement, in each case as of the date of
substitution.
For any month in which the Seller substitutes one or more
Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the
Trustee, based upon
information provided by the Servicer, shall determine the excess
(each, a
"Substitution Amount"), if any, by which the aggregate Purchase
Price of all
such Deleted Mortgage Loans exceeds the aggregate Stated
Principal Balance of
the Replacement Mortgage Loans replacing such Deleted Mortgage
Loans, together
with one month's interest on such excess amount at the
applicable Net Mortgage
Rate. On the date of such substitution, the Seller shall deliver
or cause to be
delivered to the Servicer for deposit in the Custodial Account
an amount equal
to the related Substitution Amount, if any, and the Trustee,
upon receipt of the
related Replacement Mortgage Loan or Loans and two copies of a
Request for
Release with respect to the Deleted Mortgage Loan or Loans,
shall release to the
Seller the related Trustee Mortgage File or Files and shall
execute and deliver
such instruments of transfer or assignment, in each case without
recourse, as
the Seller shall deliver to it and as shall be necessary to vest
therein any
Deleted Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the
Trustee an Opinion of Counsel to the effect that such
substitution (either
specifically or as a class of transactions) shall not cause (a)
any federal tax
to be imposed on the Trust Fund, including without limitation,
any federal tax
imposed on "prohibited transactions" under Section 860F(a)(l) of
the Code or on
"contributions after the startup date" under Section 860G(d)(l)
of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC at
any time that
any Certificate is outstanding. If such Opinion of Counsel can
not be delivered,
then such substitution may only be effected at such time as the
required Opinion
of Counsel can be given.
(c) Upon discovery by the Seller, the Depositor, the
Servicer
or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party
discovering such
fact shall within two Business Days give written notice thereof
to the other
parties. In connection therewith, the Seller or Depositor, as
applicable, shall
repurchase, or the Seller, subject to the limitations set forth
in Section
2.04(b), shall substitute one or more Replacement Mortgage Loans
for the
affected Mortgage Loan within 90 days of the earlier of
discovery or receipt of
such notice with respect to such affected Mortgage Loan. Any
such repurchase or
substitution shall be made in the same manner as set forth in
Sections 2.04(a)
and 2.04(b) above. The Trustee shall re-convey to the Seller the
Mortgage Loan
to be released pursuant hereto in the same manner, and on the
same terms and
conditions, as it would a Mortgage Loan repurchased for breach
of a
representation or warranty.
The Seller indemnifies and holds the Trust Fund, the Trustee,
the
Depositor, the Servicer and each Certificateholder harmless
against any and all
taxes, claims, losses, penalties, fines, forfeitures, reasonable
legal fees and
related costs, judgments, and any other costs, fees and expenses
that the Trust
Fund, the Trustee, the Depositor, the Servicer and any
Certificateholder may
sustain in connection with any actions of such party relating to
a repurchase of
a Mortgage Loan other than in compliance with the terms of this
Section 2.04 and
the Mortgage Loan Purchase and Sale Agreement, to the extent
that any such
action causes (i) any federal or state tax to be imposed on the
Trust Fund,
including without limitation, any federal tax imposed on
"prohibited
transactions" under Section 860F(a)(1) of the Code or on
"contributions after
the
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startup date" under Section 860G(d)(1) of the Code, or (ii) any
REMIC formed
hereby to fail to qualify as a REMIC at any time that any
Certificate is
outstanding.
(d) Notwithstanding anything to the contrary in this
Agreement, Seller shall service and administer the Additional
Collateral, it
being understood and agreed that only Seller shall service and
administer the
related securities accounts, lines of credit and guarantees with
respect to
Additional Collateral.
Section 2.05. Grant Clause.
(a) It is intended that the conveyance of the Depositor's
right, title and interest in and to property constituting the
Trust Fund
pursuant to this Agreement shall constitute, and shall be
construed as, a sale
of such property and not a grant of a security interest to
secure a loan.
However, if such conveyance is deemed to be in respect of a
loan, it is intended
that: (1) the rights and obligations of the parties shall be
established
pursuant to the terms of this Agreement; (2) the Depositor
hereby grants to the
Trustee for the benefit of the Holders of the Certificates a
first priority
security interest in all of the Depositor's right, title and
interest in, to and
under, whether now owned or hereafter acquired, the Trust Fund
and all proceeds
of any and all property constituting the Trust Fund to secure
payment of the
Certificates; and (3) this Agreement shall constitute a security
agreement under
applicable law. If such conveyance is deemed to be in respect of
a loan and the
trust created by this Agreement terminates prior to the
satisfaction of the
claims of any Person holding any Certificate, the security
interest created
hereby shall continue in full force and effect and the Trustee
shall be deemed
to be the collateral agent for the benefit of such Person, and
all proceeds
shall be distributed as herein provided.
(b) The Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans
and the other property described above, such security interest
would be deemed
to be a perfected security interest of first priority under
applicable law and
will be maintained as such throughout the term of this
Agreement. The Depositor
will, at its own expense, make all initial filings on or about
the Closing Date
and shall forward a copy of such filing or filings to the
Trustee. Without
limiting the generality of the foregoing, the Depositor shall
prepare and
forward for filing, or shall cause to be forwarded for filing,
at the expense of
the Depositor, all filings necessary to maintain the
effectiveness of any
original filings necessary under the relevant UCC to perfect the
Trustee's
security interest in or lien on the Mortgage Loans and the other
property
described above, including without limitation (x) continuation
statements, and
(y) such other statements as may be occasioned by (1) any change
of name of
Seller, the Depositor or the Trustee, (2) any change of location
of the place of
business or the chief executive office of the Seller or the
Depositor, (3) any
transfer of any interest of the Depositor in any Mortgage Loan
or (4) any change
under the relevant UCC or other applicable laws. The Depositor
shall not
organize under the law of any jurisdiction other than the State
under which each
is organized as of the Closing Date (whether changing its
jurisdiction of
organization or organizing under an additional jurisdiction)
without giving 30
days prior written notice of such action to its immediate and
intermediate
transferee, including the Trustee. Before effecting such change,
the Depositor
proposing to change its jurisdiction of organization shall
prepare and file in
the appropriate filing office any financing statements or other
statements
necessary to continue the perfection of the interests of its
immediate and
mediate transferees, including the Trustee, in the Mortgage
Loans and the other
property described above. In connection with the transactions
contemplated by
this Agreement, the Depositor authorizes its immediate or
mediate transferee to
file in any filing office any initial financing statements,
any
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amendments to financing statements, any continuation statements,
or any other
statements or filings described in this paragraph (b).
ARTICLE III.
THE CERTIFICATES
Section 3.01. The Certificates.
(a) The Certificates shall be issuable in registered form
only
and shall be securities governed by Article 8 of the New York
Uniform Commercial
Code. The Book-Entry Certificates will be evidenced by one or
more certificates,
beneficial ownership of which will be held in the dollar
denominations in
Certificate Principal Amount, or Class Notional Amount, as
applicable, or in the
Percentage Interests, specified herein. Each Class of Book-Entry
Certificates
will be issued in the minimum denominations in Certificate
Principal Amount (or
Class Notional Amount) specified in the Preliminary Statement
hereto and in
integral multiples of $1 in excess thereof. Each Class of
Non-Book-Entry
Certificates other than the Residual Certificates shall be
issued in definitive,
fully registered form in the minimum denominations in
Certificate Principal
Amount specified in the Preliminary Statement hereto and in
integral multiples
of $1 in excess thereof. The Residual Certificates shall be
issued as single
Certificates and maintained in definitive, fully registered form
in a
denomination equal to 100% of the Percentage Interest of each
such Class.
(b) The Certificates shall be executed by manual or
facsimile
signature on behalf of the Trustee by an authorized officer.
Each Certificate
shall, on original issue, be authenticated by the Trustee or an
Authenticating
Agent upon the order of the Depositor upon receipt by the
Trustee of the Trustee
Mortgage Files described in Section 2.01. No Certificate shall
be entitled to
any benefit under this Agreement, or be valid for any purpose,
unless there
appears on such Certificate a certificate of authentication
substantially in the
form provided for herein, executed by an authorized officer of
the Trustee or of
an Authenticating Agent, by manual signature, and such
certification upon any
Certificate shall be conclusive evidence, and the only evidence,
that such
Certificate has been duly authenticated and delivered hereunder.
All
Certificates shall be dated the date of their authentication. At
any time and
from time to time after the execution and delivery of this
Agreement, the
Depositor may deliver Certificates executed by the Trustee to
the Trustee or the
Authenticating Agent for authentication and the Trustee or the
Authenticating
Agent shall authenticate and deliver such Certificates as in
this Agreement
provided and not otherwise.
(c) The Class X-B, Class B-4, Class B-5 and Class B-6
certificates offered and sold in reliance on the exemption from
registration
under Rule 144A under the Act shall be issued initially in the
form of one or
more permanent global Certificates in definitive, fully
registered form without
interest coupons with the applicable legends set forth in
Exhibit A added to the
forms of such Certificates (each, a "Restricted Global
Security").
Section 3.02. Registration.
The Trustee is hereby appointed, and the Trustee hereby accepts
its
appointment as, initial Certificate Registrar in respect of the
Certificates and
shall maintain books for the registration and for the transfer
of Certificates
(the "Certificate Register"). The Trustee may appoint a bank or
trust company to
act as successor Certificate Registrar. A registration book
shall be maintained
for the Certificates collectively. The Certificate Registrar may
resign or be
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discharged or removed and a new successor may be appointed in
accordance with
the procedures and requirements set forth in Sections 6.06 and
6.07 hereof with
respect to the resignation, discharge or removal of the Trustee
and the
appointment of a successor Trustee. The Certificate Registrar
may appoint, by a
written instrument delivered to the Holders, any bank or trust
company to act as
co-registrar under such conditions as the Certificate Registrar
may prescribe;
provided, however, that the Certificate Registrar shall not be
relieved of any
of its duties or responsibilities hereunder by reason of such
appointment.
Section 3.03. Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which
shall be subject to Section 3.09 hereof) may be transferred by
the Holder
thereof only upon presentation and surrender of such Certificate
at the office
of the Certificate Registrar duly endorsed or accompanied by an
assignment duly
executed by such Holder or his duly authorized attorney in such
form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of
any Certificate
in accordance with the preceding sentence, the Trustee shall
execute, and the
Authenticating Agent shall authenticate and deliver to the
transferee, one or
more new Certificates of the same Class and evidencing, in the
aggregate, the
same aggregate Certificate Principal Amount (or Notional Amount)
as the
Certificate being transferred. No service charge shall be made
to a
Certificateholder for any registration of transfer of
Certificates, but the
Certificate Registrar may require payment of a sum sufficient to
cover any tax
or governmental charge that may be imposed in connection with
any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for
any number of new Certificates of the same Class, in authorized
denominations,
representing in the aggregate the same Certificate Principal
Amount (or Notional
Amount) as the Certificate surrendered, upon surrender of the
Certificate to be
exchanged at the office of the Certificate Registrar duly
endorsed or
accompanied by a written instrument of transfer duly executed by
such Holder or
his duly authorized attorney in such form as is satisfactory to
the Certificate
Registrar. Certificates delivered upon any such exchange will
evidence the same
obligations, and will be entitled to the same rights and
privileges, as the
Certificates surrendered. No service charge shall be made to a
Certificateholder
for any exchange of Certificates, but the Certificate Registrar
may require
payment of a sum sufficient to cover any tax or governmental
charge that may be
imposed in connection with any exchange of Certificates.
Whenever any
Certificates are so surrendered for exchange, the Trustee shall
execute, and the
Authenticating Agent shall authenticate, date and deliver the
Certificates which
the Certificateholder making the exchange is entitled to
receive.
(c) By acceptance of a Restricted Certificate, whether upon
original issuance or subsequent transfer, each Holder of such a
Certificate
acknowledges the restrictions on the transfer of such
Certificate set forth
thereon and agrees that it will transfer such a Certificate only
as provided
herein.
The following restrictions shall apply with respect to the
transfer and
registration of transfer of a Restricted Certificate to a
transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of
a
Restricted Certificate if the requested transfer is (x) to
the
Depositor or an affiliate (as defined in Rule 405 under the
1933
Act) of the Depositor or (y) being made to a "qualified
institutional buyer" (a "QIB") as defined in Rule 144A under
the
Securities Act of 1933, as amended (the "Act") by a transferor
that
has
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provided the Certificate Registrar with a certificate in the
form of
Exhibit G hereto; and
(ii) The Certificate Registrar shall register the transfer
of
a Restricted Certificate if the requested transfer is being made
to
an "accredited investor" under Rule 501(a)(1), (2), (3) or (7)
under
the Act, or to any Person all of the equity owners in which are
such
accredited investors, by a transferor who furnishes to the
Certificate Registrar a letter of the transferee substantially
in
the form of Exhibit H hereto.
(d)(i) No transfer of an ERISA Restricted Certificate that
is
a Class A-R Certificate may be made to any Person that is an
employee benefit
plan subject to Title I of ERISA, a plan subject to Section 4975
of the Code or
a plan or arrangement subject to any provisions under any
federal, state, local,
non-U.S. or other laws or regulations that are substantively
similar to the
foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a
"Plan"), or to any Person directly or indirectly acquiring a
Class A-R
Certificate for, on behalf of or with any assets of any such
Plan. Each Person
to whom a Class A-R Certificate is to be transferred shall be
required or deemed
to represent that it is not a Plan, as set forth in Exhibit
B.
(ii) No transfer of an ERISA-Restricted Certificate other
than
a Class A-R Certificate shall be made unless the prospective
transferee provides
the Trustee and the Depositor with (A) a representation as set
forth in Exhibit
I to the effect that such transferee is not a Plan and is not
directly or
indirectly acquiring the Certificate for, on behalf of or with
any assets of any
such Plan, (B) if the Certificate has been the subject of an
ERISA-Qualifying
Underwriting, a representation as set forth in Exhibit I that
such transferee is
an insurance company that is acquiring the ERISA-Restricted
Certificate with
assets contained in an "insurance company general account," as
defined in
Section V(E) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the
acquisition and holding of the Certificate are covered and
exempt under Sections
I and III of PTCE 95-60, or (C) solely in the case of a
Definitive Certificate,
an Opinion of Counsel satisfactory to the Trustee and the
Depositor to the
effect that the acquisition and holding of such Certificate will
not constitute
or result in a nonexempt prohibited transaction under ERISA or
the Code, or a
violation of Similar Law, and will not subject the Certificate
Registrar, the
Depositor, the Servicer or the Trustee to any obligation in
addition to those
expressly undertaken in this Agreement, which Opinion of Counsel
shall not be an
expense of the Certificate Registrar, the Depositor, the
Servicer or the
Trustee.
(iii) For purposes of paragraphs (i) and (ii) of this
Subsection 3.03(d), other than subparagraph (ii)(C), the
representation as set
forth in Exhibit B or Exhibit I, as applicable, shall be deemed
to have been
made to the Trustee or the Depositor by the transferee's
acceptance of an ERISA
Restricted Certificate (or the acceptance by a Certificate Owner
of the
beneficial interest in any Class of ERISA Restricted
Certificates).
Notwithstanding any other provision herein to the contrary, any
purported
transfer of an ERISA Restricted Certificate to or on behalf of a
Plan without
the delivery to the Trustee or the Depositor of a representation
or an Opinion
of Counsel satisfactory to the Trustee or the Depositor as
described above shall
be void and of no effect. None of the Certificate Registrar, the
Depositor, the
Servicer or the Trustee shall be under any liability to any
Person for any
registration or transfer of any ERISA Restricted Certificate
that is in fact not
permitted by this Section 3.03(d) nor shall the Paying Agent be
under any
liability for making any payments due on such Certificate to the
Holder thereof
or taking any other action with respect to such Holder under the
provisions of
this Agreement so long as the transfer was registered by the
Certificate
Registrar in accordance with the foregoing
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requirements. The Certificate Registrar, Depositor, Servicer,
Paying Agent
and/or Trustee shall be entitled, but not obligated, to recover
from any Holder
of any ERISA Restricted Certificate that was in fact a Plan and
that held such
Certificate in violation of this Section 3.03(d) all payments
made on such ERISA
Restricted Certificate at and after the time it commenced such
holding. Any such
payments so recovered shall be paid and delivered to the last
preceding Holder
of such Certificate that is not a Plan.
(iv) Notwithstanding the foregoing, no representation or
Opinion of Counsel shall be required for the initial issuance of
the ERISA
Restricted Certificates.
(e) As a condition of the registration of transfer or
exchange
of any Certificate, the Certificate Registrar may require the
certified taxpayer
identification number of the owner of the Certificate and the
payment of a sum
sufficient to cover any tax or other governmental charge imposed
in connection
therewith; provided, however, that the Certificate Registrar
shall have no
obligation to require such payment or to determine whether or
not any such tax
or charge may be applicable. No service charge shall be made to
the
Certificateholder for any registration, transfer or exchange of
a Certificate.
(f) Notwithstanding anything to the contrary contained
herein,
no Residual Certificate or beneficial interest therein may be
owned, pledged or
transferred, directly or indirectly, by or to (i) a Disqualified
Organization or
(ii) an individual, corporation or partnership or other person
unless, in the
case of clause (ii), such person is (A) not a Non-U.S. Person or
(B) is a
Non-U.S. Person that holds a Residual Certificate in connection
with the conduct
of a trade or business within the United States and has
furnished the transferor
and the Certificate Registrar with an effective Internal Revenue
Service Form
W-8ECI or successor form at the time and in the manner required
by the Code (any
such person who is not covered by clause (A) or (B) above is
referred to herein
as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer,
sale or
other disposition of a Residual Certificate or a beneficial
interest therein,
the proposed transferee shall deliver to the Trustee and the
Certificate
Registrar an affidavit in substantially the form attached hereto
as Exhibit B
representing and warranting, among other things, that such
transferee is neither
a Disqualified Organization, an agent or nominee acting on
behalf of a
Disqualified Organization, nor a Non-permitted Foreign Holder
(any such
transferee, a "Permitted Transferee"), and the proposed
transferor shall deliver
to the Trustee and the Certificate Registrar an affidavit in
substantially the
form attached hereto as Exhibit C. In addition, the Trustee or
the Certificate
Registrar may (but shall have no obligation to) require, prior
to and as a
condition of any such transfer, the delivery by the proposed
transferee of an
Opinion of Counsel, addressed to the Trustee and the Certificate
Registrar, that
such proposed transferee or, if the proposed transferee is an
agent or nominee,
the proposed beneficial owner, is not a Disqualified
Organization, agent or
nominee thereof, or a Non-permitted Foreign Holder.
Notwithstanding the
registration in the Certificate Register of any transfer, sale,
or other
disposition of a Residual Certificate to a Disqualified
Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such
registration shall be
deemed to be of no legal force or effect whatsoever and such
Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign
Holder shall
not be deemed to be a Certificateholder for any purpose
hereunder, including,
but not limited to, the receipt of distributions on such
Residual Certificate.
The Depositor, the Certificate Registrar and the Trustee shall
be under no
liability to any Person for any registration or transfer of a
Residual
Certificate to a Disqualified Organization, agent or nominee
thereof or
Non-permitted Foreign Holder or for the Paying Agent making any
payments due on
such Residual Certificate to the Holder thereof or for taking
any other action
with respect to such Holder under the provis
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