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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
DLJ MORTGAGE CAPITAL, INC.,
Seller
WILSHIRE CREDIT CORPORATION,
Servicer
INDYMAC BANK, F.S.B.,
Servicer
and
JPMORGAN CHASE BANK, N.A.,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
--------------------------------------------------------------------------------
HOME EQUITY MORTGAGE TRUST SERIES 2005-2
HOME EQUITY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2005-2
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS.............................................................................................1
SECTION 1.01
Definitions..............................................................................1
SECTION 1.02 Interest
Calculations...................................................................46
SECTION 1.03 Allocation of Certain Interest
Shortfalls...............................................46
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES..........................................48
SECTION 2.01 Conveyance of Mortgage
Loans............................................................48
SECTION 2.02 Representations and Warranties of the Seller and
Servicer...............................58
SECTION 2.03 Representations and Warranties of the Depositor as
to the Mortgage Loans................60
SECTION 2.04 Delivery of Opinion of Counsel in Connection with
Substitutions.........................60
SECTION 2.05 Execution and Delivery of
Certificates..................................................61
SECTION 2.06 REMIC
Matters...........................................................................61
SECTION 2.07 Covenants of the
Servicer...............................................................62
SECTION 2.08 Conveyance of REMIC Regular Interests and
Acceptance of REMIC 1, REMIC 2
and REMIC 3 by the Trustee; Issuance of
Certificates....................................62
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.......................................................64
SECTION 3.01 Servicer to Service Mortgage
Loans......................................................64
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers............................66
SECTION 3.03
[Reserved]..............................................................................68
SECTION 3.04 Trustee to Act as
Servicer..............................................................68
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account;
Pre-Funding
Account.....................................................................68
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted
Withdrawals from Escrow Accounts; Payments of Taxes,
Insurance
and Other
Charges.......................................................................72
SECTION 3.07 Access to Certain Documentation and Information
Regarding the
Mortgage Loans;
Inspections.............................................................74
SECTION 3.08 Permitted Withdrawals from the Collection Accounts
and Certificate Account..............74
SECTION 3.09 Maintenance of Hazard Insurance and Mortgage
Impairment Insurance;
Claims; Restoration of Mortgaged
Property...............................................76
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements...............................78
SECTION 3.11 Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.........79
SECTION 3.12 Trustee to Cooperate; Release of Mortgage
Files.........................................86
SECTION 3.13 Documents, Records and Funds in Possession of the
Servicer to
be Held for the
Trustee.................................................................87
SECTION 3.14 Servicing
Fee...........................................................................88
SECTION 3.15 Access to Certain
Documentation.........................................................88
SECTION 3.16 Annual Statement as to
Compliance.......................................................88
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SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements........89
SECTION 3.18 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.........................89
SECTION 3.19 Duties of the Credit Risk
Manager.......................................................90
SECTION 3.20 Limitation Upon Liability of the Credit Risk
Manager....................................90
SECTION 3.21 Advance
Facility........................................................................91
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE
SERVICER............................................................94
SECTION 4.01 Advances by the
Servicer................................................................94
SECTION 4.02 Priorities of
Distribution..............................................................95
SECTION 4.03
[Reserved].............................................................................101
SECTION 4.04
[Reserved].............................................................................101
SECTION 4.05 Allocation of Realized
Losses..........................................................101
SECTION 4.06 Monthly Statements to
Certificateholders...............................................103
SECTION 4.07 Distributions on the REMIC 1 Regular Interests and
REMIC 2 Regular Interests...........103
SECTION 4.08
[Reserved].............................................................................106
SECTION 4.09 Prepayment
Charges.....................................................................106
SECTION 4.10 Servicer to
Cooperate..................................................................106
ARTICLE V THE
CERTIFICATES......................................................................................108
SECTION 5.01 The
Certificates.......................................................................108
SECTION 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates...........109
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates......................................114
SECTION 5.04 Persons Deemed
Owners..................................................................115
SECTION 5.05 Access to List of Certificateholders' Names and
Addresses..............................115
SECTION 5.06 Maintenance of Office or
Agency........................................................115
ARTICLE VI THE DEPOSITOR, THE SELLER AND THE
SERVICER...........................................................116
SECTION 6.01 Respective Liabilities of the Depositor, the
Sellers and the Servicer..................116
SECTION 6.02 Merger or Consolidation of the Depositor, the
Seller or the Servicer...................116
SECTION 6.03 Limitation on Liability of the Depositor, the
Seller, the Servicer and Others..........116
SECTION 6.04 Limitation on Resignation of the
Servicer..............................................117
ARTICLE VII
DEFAULT.............................................................................................119
SECTION 7.01 Events of
Default......................................................................119
SECTION 7.02 Trustee to Act; Appointment of
Successor...............................................121
SECTION 7.03 Notification to
Certificateholders.....................................................123
ARTICLE VIII CONCERNING THE
TRUSTEE.............................................................................124
SECTION 8.01 Duties of the
Trustee..................................................................124
SECTION 8.02 Certain Matters Affecting the
Trustee..................................................125
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage
Loans..................................126
SECTION 8.04 Trustee May Own
Certificates...........................................................126
SECTION 8.05 Trustee's Fees and
Expenses............................................................126
SECTION 8.06 Eligibility Requirements for the Trustee and
Custodian.................................127
SECTION 8.07 Resignation and Removal of the
Trustee.................................................127
SECTION 8.08 Successor
Trustee......................................................................128
SECTION 8.09 Merger or Consolidation of the
Trustee.................................................129
SECTION 8.10 Appointment of Co-Trustee or Separate
Trustee..........................................129
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SECTION 8.11 Tax
Matters............................................................................130
SECTION 8.12 Commission
Reporting...................................................................133
ARTICLE IX
TERMINATION..........................................................................................136
SECTION 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.........................136
SECTION 9.02 Final Distribution on the
Certificates.................................................137
SECTION 9.03 Additional Termination
Requirements....................................................138
ARTICLE X MISCELLANEOUS
PROVISIONS..............................................................................140
SECTION 10.01
Amendment..............................................................................140
SECTION 10.02 Recordation of Agreement;
Counterparts.................................................141
SECTION 10.03 Governing
Law..........................................................................142
SECTION 10.04
[Reserved].............................................................................142
SECTION 10.05
Notices................................................................................142
SECTION 10.06 Severability of
Provisions.............................................................143
SECTION 10.07
Assignment.............................................................................143
SECTION 10.08 Limitation on Rights of
Certificateholders.............................................143
SECTION 10.09 Certificates Nonassessable and Fully
Paid..............................................144
SECTION 10.10
Non-Solicitation.......................................................................144
EXHIBIT A. Form of Class A
Certificates...........................................................A-1
EXHIBIT B. Form of Subordinate
Certificate........................................................B-1
EXHIBIT C. Form of Residual
Certificate...........................................................C-1
EXHIBIT D. Form of Notional Amount
Certificate....................................................D-1
EXHIBIT E. Form of Class P
Certificate............................................................E-1
EXHIBIT F. Form of Reverse
Certificates...........................................................F-1
EXHIBIT G. Form of Initial Certification of
Custodian.............................................G-1
EXHIBIT H. Form of Final Certification of
Custodian...............................................H-1
EXHIBIT I. Transfer
Affidavit.....................................................................I-1
EXHIBIT J. Form of Transferor
Certificate.........................................................J-1
EXHIBIT K. Form of Investment Letter (Non-Rule
144A)..............................................K-1
EXHIBIT L. Form of Rule 144A
Letter...............................................................L-1
EXHIBIT M. Request for
Release....................................................................M-1
EXHIBIT N. Form of Subsequent Transfer
Agreement..................................................N-1
EXHIBIT O-1. Form of Collection Account
Certification.............................................O-1-1
EXHIBIT O-2. Form of Collection Account Letter
Agreement..........................................O-2-1
EXHIBIT P-1. Form of Escrow Account Certification
................................................P-1-1
EXHIBIT P-2. Form of Escrow Account Letter
Agreement..............................................P-2-1
EXHIBIT Q. [Reserved]
............................................................................Q-1
EXHIBIT R. Form of Custodial
Agreement............................................................R-1
EXHIBIT S.
[Reserved].............................................................................S-1
EXHIBIT T. Data Fields for IndyMac Serviced Loans Transferred to
Wilshire.........................T-1
EXHIBIT U. Charged Off Loan Data
Report...........................................................U-1
EXHIBIT V. Form of Monthly Statement to
Certificateholders........................................V-1
EXHIBIT W. Form of Depositor
Certification........................................................W-1
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EXHIBIT X. Form of Trustee
Certification..........................................................X-1
EXHIBIT Y. Form of Servicer
Certification.........................................................Y-1
EXHIBIT Z. Information to be Provided by Servicer to
Trustee......................................Z-1
EXHIBIT AA Form of Limited Power of
Attorney.....................................................AA-1
SCHEDULE I Mortgage Loan
Schedule.................................................................I-1
SCHEDULE II Seller's Representations and
Warranties...............................................II-1
SCHEDULE IIIA Wilshire Representations and
Warranties............................................III-A-1
SCHEDULE IIIB IndyMac Representations and
Warranties.............................................III-B-1
SCHEDULE IV Representations and Warranties for the Mortgage
Loans.................................IV-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of March 1,
2005, among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware
corporation, as depositor (the "Depositor"), DLJ MORTGAGE
CAPITAL, INC., a
Delaware corporation, as Seller (the "Seller"), WILSHIRE CREDIT
CORPORATION, a
Nevada corporation, as servicer (a "Servicer" or "Wilshire"),
INDYMAC BANK,
F.S.B., a federal savings bank, as servicer (a "Servicer" or
"IndyMac", and
together with Wilshire, the "Servicers") and JPMORGAN CHASE
BANK, NATIONAL
ASSOCIATION, a national banking association organized under the
laws of the
United States, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in
multiple classes,
which in the aggregate will evidence the entire beneficial
ownership interest in
the Trust Fund created hereunder. The Certificates will consist
of twenty
classes of certificates, designated as (i) the Class A-1
Certificates, (ii) the
Class A-2 Certificates, (iii) the Class A-3 Certificates, (iv)
the Class M-1
Certificates, (v) the Class M-2 Certificates, (vi) the Class M-3
Certificates,
(vii) the Class M-4 Certificates, (viii) the Class M-5
Certificates, (ix) the
Class M-6 Certificates, (x) the Class M-7 Certificates, (xi) the
Class M-8
Certificates, (xii) the Class M-9 Certificates, (xiii) the Class
B-1
Certificates, (xiv) the Class B-2 Certificates, (xv) the Class P
Certificates,
(xvi) the Class X-1 Certificates, (xvii) the Class X-2
Certificates, (xviii) the
Class X-S Certificates, (xix) the Class A-R Certificates and
(xx) the Class A-RL
Certificates.
REMIC 1
-------
As provided herein, the Trustee will make an election to treat
the segregated
pool of assets consisting of the Mortgage Loans and certain
other related assets
subject to this Agreement (exclusive of the Pre-Funding Account)
as a real
estate mortgage investment conduit (a "REMIC") for federal
income tax purposes,
and such segregated pool of assets will be designated as "REMIC
1." The Class
A-RL Certificates will represent the sole class of "residual
interests" in REMIC
1 for purposes of the REMIC Provisions (as defined herein) under
federal income
tax law. The following table irrevocably sets forth the
designation, the
Uncertificated REMIC 1 Pass-Through Rate and the initial
Uncertificated
Principal Balance for each of the "regular interests" in REMIC 1
(the "REMIC 1
Regular Interests"). None of the REMIC 1 Regular Interests will
be certificated.
The latest possible maturity date (determined for purposes of
satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the
REMIC 1 Regular
Interests will be the Latest Possible Maturity Date as defined
herein.
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UNCERTIFICATED REMIC 1 INITIAL UNCERTIFICATED
DESIGNATION PASS-THROUGH RATE BALANCE
----------- ----------------- -------
LTI-1 Variable(1) $448,974,559.38
LTI-PF Variable(1) $ 31,025,440.62
LTI-S Variable(1) (2)
LTI-P Variable(1) $ 100.00
LTI-R Variable(1) $ 100.00
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(1) Calculated as provided in the definition of Uncertificated
REMIC 1
Pass-Through Rate.
(2) REMIC 1 Regular Interest LTI-S will not have an
Uncertificated
Principal Balance but will accrue interest on its
uncertificated
notional amount calculated in accordance with the definition
of
"Uncertificated Notional Amount" herein.
REMIC 2
-------
As provided herein, an election will be made to treat the
segregated pool of assets consisting of the REMIC 1 Regular
Interests as a REMIC
for federal income tax purposes, and such segregated pool of
assets will be
designated as REMIC 2. The Class R-2 Interest will represent the
sole class of
"residual interests" in REMIC 2 for purposes of the REMIC
Provisions under
federal income tax law (the "Class R-2 Interest"). The following
table
irrevocably sets forth the designation, Uncertificated REMIC 2
Pass-Through Rate
and initial Principal Balance for each of the "regular
interests" in REMIC 2
(the "REMIC 2 Regular Interests"). None of the REMIC 2 Regular
Interests will be
certificated. The latest possible maturity date (determined for
purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) of
each of the REMIC
2 Regular Interests will be the Latest Possible Maturity Date as
defined herein.
UNCERTIFICATED REMIC 2 INITIAL UNCERTIFICATED
DESIGNATION PASS-THROUGH RATE BALANCE
----------- ----------------- -------
MTI-AA Variable(1) $ 470,400,000.00
MTI-A-1 Variable(1) $ 902,000.00
MTI-A-2 Variable(1) $ 1,970,000.00
MTI-A-3 Variable(1) $ 656,000.00
MTI-M-1 Variable(1) $ 271,200.00
MTI-M-2 Variable(1) $ 136,800.00
MTI-M-3 Variable(1) $ 115,200.00
MTI-M-4 Variable(1) $ 117,600.00
MTI-M-5 Variable(1) $ 115,200.00
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MTI-M-6 Variable(1) $ 108,000.00
MTI-M-7 Variable(1) $ 108,000.00
MTI-M-8 Variable(1) $ 108,000.00
MTI-M-9 Variable(1) $ 76,800.00
MTI-B-1 Variable(1) $ 79,200.00
MTI-B-2 Variable(1) $ 36,000.00
MTI-ZZ Variable(1) $ 4,800,000.00
MTI-P Variable(1) $ 100.00
MTI-R Variable(1) $ 100.00
MTI-S (2) (3)
----------
(1) Calculated as provided in the definition of Uncertificated
REMIC 2
Pass-Through Rate.
(2) REMIC 2 Regular Interest MTI-S will not have an
Uncertificated REMIC 2
Pass-Through Rate, but will be entitled to 100% of the
amounts
distributed on REMIC 1 Regular Interest LTI-S.
(3) REMIC 2 Regular Interest MTI-S will not have an
Uncertificated
Principal Balance, but will have an Uncertificated Notional
Amount
equal to the Uncertificated Notional Amount of REMIC 1 Regular
Interest
LTI-S.
REMIC 3
-------
As provided herein, an election will be made to treat the
segregated pool of assets consisting of the REMIC 2 Regular
Interests as a REMIC
for federal income tax purposes, and such segregated pool of
assets will be
designated as REMIC 3. The Class R-3 Interest will represent the
sole class of
"residual interests" in REMIC 3 for purposes of the REMIC
Provisions under
federal income tax law (the "Class R-3 Interest"). The following
table
irrevocably sets forth the designation, Pass-Through Rate,
aggregate Initial
Certificate Principal Balance and minimum denominations for each
Class of
Certificates comprising the interests representing "regular
interests" in REMIC
3, and the Class A-R Certificates, Class A-RL Certificates and
Class X-2
Certificates which are not "regular interests" in REMIC 3. The
latest possible
maturity date (determined solely for purposes of satisfying
Treasury regulation
Section 1.860G-1(a)(4)(iii)) of each of the Regular Certificates
will be the
Latest Possible Maturity Date as defined herein.
3
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CLASS INTEGRAL MULTIPLES
CERTIFICATE MINIMUM IN EXCESS
BALANCE PASS-THROUGH RATE DENOMINATION OF MINIMUM
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Class A-1 $ 90,200,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class A-2 $ 197,000,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class A-3 $ 65,600,000 Adjustable(1) $ 25,000 $1
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Class P $ 100 Variable(2) $ 100 N/A
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Class A-R $ 100 Variable(2) $ 100 N/A
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Class A-RL $ 100 Variable(2) $ 100 N/A
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Class M-1 $ 27,120,000 Adjustable(1) $ 25,000 $1
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Class M-2 $ 13,680,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-3 $ 11,520,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-4 $ 11,760,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-5 $ 11,520,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-6 $ 10,800,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-7 $ 10,800,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class M-8 $ 10,800,000 Adjustable(1) $ 25,000 $1
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Class M-9 $ 7,680,000 Adjustable(1) $ 25,000 $1
------------------------------------------------------------------------------------------
Class B-1 $ 7,920,000 7.000%(3) $ 25,000 $1
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Class B-2 $ 3,600,000 7.000%(3) $ 25,000 $1
------------------------------------------------------------------------------------------
Class X-1 $ 0 Variable(4)(5) 100% $1
------------------------------------------------------------------------------------------
Class X-2 $ 0 0.00% N/A N/A
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Class X-S $ 0 (6) Variable(7) 100% $1
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(1) The Class A-1, Class A-2, Class A-3, Class M-1, Class M-2,
Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class
M-9
Certificates have an adjustable rate and will receive interest
pursuant
to formulas based on LIBOR, subject to the Net Funds Cap.
(2) The initial pass-through rates on the Class P, Class A-R and
Class A-RL
Certificates will be approximately 9.65% per annum which is
equal to
the weighted average of the Net Mortgage Rates on the Initial
Mortgage
Loans and will vary after the first Distribution Date.
(3) The Class B-1 Certificates and Class B-2 Certificates have a
fixed rate
subject to the Net Funds Cap. The fixed rate will increase by
0.50% per
annum after the Optional Termination Date.
(4) The Class X-1 Certificates will have an initial principal
balance of
$0.00 and will accrue interest on its notional amount. For
any
Distribution Date, the notional amount of the Class X-1
Certificates
will be equal to the Aggregate Collateral Balance minus the
aggregate
Class Certificate Balance of the Class A-R, Class A-RL and Class
P
Certificates immediately prior to such Distribution Date. The
initial
notional amount of the Class X-1 Certificates is
$480,000,000.
(5) The Class X-1 Certificates are variable rate and will accrue
interest
on a notional amount.
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(6) For federal income tax purposes, the Class X-S Certificates
will not
have a Class Principal Balance, but will have a notional amount
equal
to the Uncertificated Notional Amount of REMIC 2 Regular
Interest
MTI-S.
(7) The Class X-S Certificates are an interest only Class and
for each
Distribution Date the Class X-S Certificates shall receive
the
aggregate Excess Servicing Fee. For federal income tax purposes,
the
Class X-S Certificates will not have a Pass-Through Rate, but
will be
entitled to 100% of the amounts distributed on REMIC 2 Regular
Interest
MTI-S.
Set forth below are designations of Classes of Certificates
to
the categories used herein:
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Book-Entry Certificates.......................... All Classes of
Certificates other than the Physical Certificates.
ERISA-Restricted Certificates.................... Class A-R,
Class A-RL, Class P and Class X Certificates.
LIBOR Certificates............................... Class A-1,
Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class
M-9
Certificates.
Notional Amount Certificates..................... Class X-1
Certificates and Class X-S Certificates.
Class A Certificates............................. Class A-1,
Class A-2, Class A-3, Class A-R and Class A-RL Certificates.
Class B Certificates............................. Class B-1
Certificates and Class B-2 Certificates
Class M Certificates............................. Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates.
Offered Certificates............................. All Classes of
Certificates (other than the Class B, Class P
Certificates and Class X Certificates).
Physical Certificates............................ Class A-R,
Class A-RL, Class P, Class B and Class X Certificates.
Private Certificates............................. Class B, Class
P and Class X Certificates.
Rating Agencies.................................. Fitch and
Moody's.
Regular Certificates............................. All Classes of
Certificates other than the Class A-R, Class A-RL and
Class X-2 Certificates.
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Residual Certificates............................ Class A-R
Certificates and Class A-RL Certificates.
Senior Certificates.............................. Class A-1,
Class A-2, Class A-3, Class P, Class A-R and Class A-RL
Certificates.
Subordinate Certificates......................... Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class B-1, Class B-2 and Class
X-1
Certificates.
Minimum Denominations............................ Class A-1,
Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class B-1
and Class B-2 Certificates: $25,000 and multiples of $1 in
excess
thereof.
Class A-R, Class A-RL and Class P Certificates: $100. The Class
X-1
Certificates will be issued as a single Certificate with a
Certificate
Principal Balance of $0.00. The Class X-2 Certificates will be
issued
as a single Certificate and will not have a principal balance.
The
Class X-S Certificates will be issued as a single Certificate
with an
initial Notional Amount of $333,132,042.59.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
following
meanings:
Accepted Servicing Practices: With respect to any Mortgage
Loan, those mortgage servicing practices of prudent mortgage
lending
institutions which service mortgage loans of the same type as
such Mortgage Loan
in the jurisdiction where the related Mortgaged Property is
located.
Advance: The payment required to be made by a Servicer with
respect to any Distribution Date pursuant to Section 4.01.
Aggregate Collateral Balance: As of any date of
determination
will be equal to the Aggregate Loan Balance plus the amount, if
any, then on
deposit in the Pre-Funding Account.
Aggregate Loan Balance: As of any Distribution Date will be
equal to the aggregate of the Stated Principal Balances of the
Mortgage Loans
determined as of the last day of the related Collection
Period.
Aggregate Subsequent Transfer Amount: With respect to any
Subsequent Transfer Date, the aggregate Stated Principal Balance
as of the
applicable Cut-off Date of the Subsequent Mortgage Loans
conveyed on such
Subsequent Transfer Date, as listed on the revised Mortgage Loan
Schedule
delivered pursuant to Section 2.01(b); PROVIDED, HOWEVER, that
such amount shall
not exceed the amount on deposit in the Pre-Funding Account.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Ancillary Income: All income derived from the Mortgage
Loans,
other than Servicing Fees and Prepayment Charges, including but
not limited to,
late charges, fees received with respect to checks or bank
drafts returned by
the related bank for non-sufficient funds, assumption fees,
optional insurance
administrative fees and all other incidental fees and
charges.
Applied Loss Amount: As to any Distribution Date, an amount
equal to the excess, if any of (i) the aggregate Class Principal
Balance of the
Certificates after giving effect to all Realized Losses incurred
with respect to
the Mortgage Loans during the Due Period for such Distribution
Date and payments
of principal on such Distribution Date over (ii) the Aggregate
Collateral
Balance for such Distribution Date.
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Appraised Value: The amount set forth in an appraisal made
in
connection with the origination of the related Mortgage Loan as
the value of the
Mortgaged Property.
Assignment Agreement: An assignment agreement between DLJ
Mortgage Capital, Inc. as Seller and the Depositor, whereby the
Mortgage Loans
are transferred and limited representations and warranties
relating to the
Mortgage Loans are made.
Assignment of Mortgage: An assignment of the Mortgage,
notice
of transfer or equivalent instrument in recordable form (except
for the omission
of the name of the assignee if such Mortgage is endorsed in
blank), sufficient
under the laws of the jurisdiction wherein the related Mortgaged
Property is
located to reflect the transfer of the Mortgage to the Trustee
for the benefit
of the Certificateholders.
Auction Purchaser: As defined in Section 9.01.
Auction Date: As defined in Section 9.01.
Available Funds: With respect to any Distribution Date the
sum
of (i) all Scheduled Payments (net of the related Expense Fees
(other than the
Excess Servicing Fee)) due on the Due Date in the month in which
such
Distribution Date occurs and received prior to the related
Determination Date,
together with any Advances in respect thereof required pursuant
to Section 4.01;
(ii) all Insurance Proceeds, Liquidation Proceeds and Net
Recoveries received
during the month preceding the month of such Distribution Date;
(iii) all
Curtailments and Payoffs received during the Prepayment Period
applicable to
such Distribution Date (excluding Prepayment Charges); (iv)
amounts received
with respect to such Distribution Date as the Substitution
Adjustment Amount or
Repurchase Price; (v) Compensating Interest Payments for such
Distribution Date
and (vi) with respect to the Distribution Date in June 2005, the
amount
remaining in the Pre-Funding Account at the end of the
Pre-Funding Period; as to
clauses (i) through (iv) above, reduced by amounts in
reimbursement for Advances
previously made and other amounts as to which the Servicers are
entitled to be
reimbursed pursuant to Section 3.08.
Bankruptcy Code: The United States Bankruptcy Reform Act of
1978, as amended.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Business Day: Any day other than (i) a Saturday or a Sunday,
or (ii) a day on which banking institutions in the City of New
York, New York,
or the city in which the Corporate Trust Office of the Trustee,
or the states in
which any Servicer's servicing operations are located, or
savings and loan
institutions in the States of Illinois, California, Texas,
Oregon, New Jersey or
Florida is located are authorized or obligated by law or
executive order to be
closed.
Carryforward Interest: For any Class of Certificates and any
Distribution Date, the sum of (1) the amount, if any, by which
(x) the sum of
(A) Current Interest for such Class for the immediately
preceding Distribution
Date and (B) any unpaid Carryforward Interest from
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<PAGE>
previous Distribution Dates exceeds (y) the amount paid in
respect of interest
on such Class on such immediately preceding Distribution Date,
and (2) interest
on such amount for the related Interest Accrual Period at the
applicable
Pass-Through Rate.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached hereto as
exhibits.
Certificates: As specified in the Preliminary Statement.
Certificate Account: The separate Eligible Account created
and
maintained with the Trustee, or any other bank or trust company
acceptable to
the Rating Agencies which is incorporated under the laws of the
United States or
any state thereof pursuant to Section 3.05, which account shall
bear a
designation clearly indicating that the funds deposited therein
are held in
trust for the benefit of the Trustee on behalf of the
Certificateholders or any
other account serving a similar function acceptable to the
Rating Agencies.
Funds in the Certificate Account may (i) be held uninvested
without liability
for interest or compensation thereon or (ii) be invested at the
direction of the
Trustee in Eligible Investments and reinvestment earnings
thereon (net of
investment losses) shall be paid to the Trustee. Funds deposited
in the
Certificate Account (exclusive of the Trustee Fee and other
amounts permitted to
be withdrawn pursuant to Section 3.08) shall be held in trust
for the
Certificateholders.
Certificate Balance: With respect to any Certificate at any
date, the maximum dollar amount of principal to which the Holder
thereof is then
entitled hereunder, such amount being equal to the Denomination
thereof minus
the sum of (i) all distributions of principal previously made
with respect
thereto and (ii) all Realized Losses allocated thereto and, in
the case of any
Subordinate Certificates, all other reductions in Certificate
Balance previously
allocated thereto pursuant to Section 4.05.
Certificate Margin: As to each Class of LIBOR Certificates,
the applicable amount set forth below:
CLASS CERTIFICATE MARGIN
----- ------------------
(1) (2)
A-1 0.180% 0.360%
A-2 0.120% 0.240%
A-3 0.220% 0.440%
M-1 0.420% 0.630%
M-2 0.450% 0.675%
M-3 0.480% 0.720%
M-4 0.630% 0.945%
M-5 0.680% 1.020%
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M-6 0.760% 1.140%
M-7 1.180% 1.680%
M-8 1.280% 1.780%
M-9 1.900% 2.400%
----------
(1) On or prior to the Optional Termination Date.
(2) After the Optional Termination Date.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry
Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except
that, solely for
the purpose of giving any consent pursuant to this Agreement,
any Certificate
registered in the name of the Depositor or any affiliate of the
Depositor shall
be deemed not to be Outstanding and the Percentage Interest
evidenced thereby
shall not be taken into account in determining whether the
requisite amount of
Percentage Interests necessary to effect such consent has been
obtained;
provided, however, that if any such Person (including the
Depositor) owns 100%
of the Percentage Interests evidenced by a Class of
Certificates, such
Certificates shall be deemed to be Outstanding for purposes of
any provision
hereof that requires the consent of the Holders of Certificates
of a particular
Class as a condition to the taking of any action hereunder. The
Trustee is
entitled to rely conclusively on a certification of the
Depositor or any
affiliate of the Depositor in determining which Certificates are
registered in
the name of an affiliate of the Depositor.
Charged Off Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan that has not yet been liquidated, giving
rise to a
Realized Loss, on the date on which the related Servicer
determines, pursuant to
the procedures set forth in Section 3.11, that there will be (i)
no Significant
Net Recoveries with respect to such Mortgage Loan or (ii) the
potential Net
Recoveries are anticipated to be an amount, determined by the
related Servicer
in its good faith judgment and in light of other mitigating
circumstances, that
is insufficient to warrant proceeding through foreclosure or
other liquidation
of the related Mortgaged Property.
Class: All Certificates bearing the same class designation
as
set forth in the Preliminary Statement.
Class A-R Certificates: The Class A-R Certificates
represents
beneficial ownership of the Class R-2 Interest and Class R-3
Interest.
Class A-RL Certificates: The sole class of residual
interests
in REMIC 1.
Class A-1 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.03% per annum. With respect to any
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<PAGE>
Interest Accrual Period thereafter, will be a per annum rate
equal to the lesser
of (i) the sum of LIBOR plus the related Certificate Margin and
(ii) the Net
Funds Cap.
Class A-2 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
2.97% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class A-3 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.07% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class A-R Pass-Through Rate: With respect to the
Distribution
Date in April 2005, May 2005 or June 2005, a per annum rate
equal to the Initial
Mortgage Loan Net WAC Rate, and with respect to any Distribution
Date
thereafter, a per annum rate equal to the Net Funds Cap.
Class A-RL Pass-Through Rate: With respect to the
Distribution
Date in April 2005, May 2005 or June 2005, a per annum rate
equal to the Initial
Mortgage Loan Net WAC Rate, and with respect to any Distribution
Date
thereafter, a per annum rate equal to the Net Funds Cap.
Class B-1 Pass-Through Rate: With respect to the initial
Interest Accrual Period (a) on or prior to the Optional
Termination Date, the
lesser of (i) 7.000% per annum and (ii) the Net Funds Cap, and
(b) after the
Optional Termination Date, the lesser of (i) 7.500% per annum
and (ii) the Net
Funds Cap.
Class B-1 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event is
not in effect
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class
M-9
Certificates, in each case, after giving effect to payments on
such Distribution
Date and (ii) the Class Principal Balance of the Class B-1
Certificates
immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the
product of (i) 88.30% and (ii) the Aggregate Collateral Balance
for such
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
Class B-2 Pass-Through Rate: With respect to the initial
Interest Accrual Period (a) on or prior to the Optional
Termination Date, the
lesser of (i) 7.000% per annum and (ii) the Net Funds Cap, and
(b) after the
Optional Termination Date, the lesser of (i) 7.500% per annum
and (ii) the Net
Funds Cap.
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<PAGE>
Class B-2 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event is
not in effect
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9
and Class B-1
Certificates, in each case, after giving effect to payments on
such Distribution
Date and (ii) the Class Principal Balance of the Class B-2
Certificates
immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the
product of (i) 89.80% and (ii) the Aggregate Collateral Balance
for such
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
Class M-1 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.27% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-1 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event is
not in effect
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R and Class A-RL Certificates
after giving
effect to payments on such Distribution Date and (ii) the Class
Principal
Balance of the Class M-1 Certificates immediately prior to such
Distribution
Date exceeds (y) the lesser of (A) the product of (i) 48.10% and
(ii) the
Aggregate Collateral Balance for such Distribution Date and (B)
the amount, if
any, by which (i) the Aggregate Collateral Balance for such
Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the
Cut-off Date.
Class M-2 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.30% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-2 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL and Class M-1
Certificates, in
each case, after giving effect to payments on such Distribution
Date and (ii)
the Class Principal Balance of the Class M-2 Certificates
immediately prior to
such Distribution Date exceeds (y) the lesser of (A) the product
of (i) 53.80%
and (ii) the Aggregate Collateral Balance for such Distribution
Date and (B) the
amount, if any, by which (i) the Aggregate Collateral Balance
for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Collateral
Balance as of
the Cut-off Date.
Class M-3 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.33% per annum. With respect to any
6
<PAGE>
Interest Accrual Period thereafter, will be a per annum rate
equal to the lesser
of (i) the sum of LIBOR plus the related Certificate Margin and
(ii) the Net
Funds Cap.
Class M-3 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1 and
Class M-2
Certificates, in each case, after giving effect to payments on
such Distribution
Date and (ii) the Class Principal Balance of the Class M-3
Certificates
immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the
product of (i) 58.60% and (ii) the Aggregate Collateral Balance
for such
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
Class M-4 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.48% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-4 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2 and Class
M-3 Certificates, in each case, after giving effect to payments
on such
Distribution Date and (ii) the Class Principal Balance of the
Class M-4
Certificates immediately prior to such Distribution Date exceeds
(y) the lesser
of (A) the product of (i) 63.50% and (ii) the Aggregate
Collateral Balance for
such Distribution Date and (B) the amount, if any, by which (i)
the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
Class M-5 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.53% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-5 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3
and Class M-4 Certificates, in each case, after giving effect to
payments on
such Distribution Date and (ii) the Class Principal Balance of
the Class M-5
Certificates immediately prior to such Distribution Date exceeds
(y) the lesser
of (A) the product of (i) 68.30% and (ii) the Aggregate
Collateral Balance for
such Distribution Date and (B) the amount, if any, by which (i)
the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
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<PAGE>
Class M-6 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
3.61% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-6 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4 and Class M-5 Certificates, in each case, after giving
effect to
payments on such Distribution Date and (ii) the Class Principal
Balance of the
Class M-6 Certificates immediately prior to such Distribution
Date exceeds (y)
the lesser of (A) the product of (i) 72.80% and (ii) the
Aggregate Collateral
Balance for such Distribution Date and (B) the amount, if any,
by which (i) the
Aggregate Collateral Balance for such Distribution Date exceeds
(ii) 0.50% of
the Aggregate Collateral Balance as of the Cut-off Date.
Class M-7 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
4.03% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-7 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates, in each case,
after giving
effect to payments on such Distribution Date and (ii) the Class
Principal
Balance of the Class M-7 Certificates immediately prior to such
Distribution
Date exceeds (y) the lesser of (A) the product of (i) 77.30% and
(ii) the
Aggregate Collateral Balance for such Distribution Date and (B)
the amount, if
any, by which (i) the Aggregate Collateral Balance for such
Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the
Cut-off Date.
Class M-8 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
4.13% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-8 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4, Class M-5, Class M-6 and Class M-7 Certificates, in
each case, after
giving effect to payments on such Distribution Date and (ii) the
Class Principal
Balance of the Class M-8 Certificates immediately prior to such
Distribution
Date exceeds (y) the lesser of (A) the product of (i) 81.80% and
(ii) the
Aggregate Collateral Balance for such
8
<PAGE>
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of the
Aggregate Collateral Balance as of the Cut-off Date.
Class M-9 Pass-Through Rate: With respect to the initial
Interest Accrual Period, based on a LIBOR determination date of
March 24, 2005,
4.75% per annum. With respect to any Interest Accrual Period
thereafter, will be
a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related
Certificate Margin and (ii) the Net Funds Cap.
Class M-9 Principal Payment Amount: For any Distribution
Date
on or after the Stepdown Date and as long as a Trigger Event has
not occurred
with respect to such Distribution Date, will be the amount, if
any, by which (x)
the sum of (i) the aggregate Class Principal Balance of the
Class A-1, Class
A-2, Class A-3, Class P, Class A-R, Class A-RL, Class M-1, Class
M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in each
case, after giving effect to payments on such Distribution Date
and (ii) the
Class Principal Balance of the Class M-9 Certificates
immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of
(i) 85.00% and
(ii) the Aggregate Collateral Balance for such Distribution Date
and (B) the
amount, if any, by which (i) the Aggregate Collateral Balance
for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Collateral
Balance as of
the Cut-off Date.
Class X-1 Distributable Amount: With respect to any
Distribution Date, the amount of interest accrued during the
related Interest
Accrual Period at the related Pass-Through Rate on the Class X-1
Notional Amount
for such Distribution Date.
Class X-1 Notional Amount: Immediately prior to any
Distribution Date, with respect to the Class X-1 Certificates,
an amount equal
to the aggregate of the Uncertificated Principal Balances of the
REMIC 2 Regular
Interests (other than REMIC 2 Regular Interests MTI-P and
MTI-R).
Class X-S Notional Amount: Immediately prior to any
Distribution Date, with respect to the Class X-S Certificates,
an amount equal
to the Stated Principal Balance of the Wilshire Serviced Loans
as of the Due
Date in the month of such Distribution Date (prior to giving
effect to any
Scheduled Payments due on such Mortgage Loans on such Due Date).
For federal
income tax purposes, however, the Class X-S Notional Amount will
equal the
Uncertificated Notional Amount of REMIC 2 Regular Interest
MTI-S.
Class P Pass-Through Rate: With respect to the Class P
Certificates and the Distribution Dates for April 2005, May 2005
and June 2005 a
per annum rate equal to the Initial Mortgage Loan Net WAC Rate,
and with respect
to any Distribution Date thereafter, a per annum rate equal to
the Net Funds
Cap. For federal income tax purposes, however, with respect to
any Distribution
Date, the Class P Certificates will be entitled to 100% of the
interest accrued
on REMIC 2 Regular Interest MTI-P.
9
<PAGE>
Class Principal Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate
Balances of all
Certificates of such Class as of such date plus, in the case of
any Subordinate
Certificates, any increase in the Class Principal Balance of
such Class pursuant
to Section 4.02(vii) due to the receipt of Net Recoveries.
Class R-2 Interest: The sole class of residual interests in
REMIC 2.
Class R-3 Interest: The sole class of residual interests in
REMIC 3.
Closing Date: March 30, 2005.
Code: The Internal Revenue Code of 1986, as the same may be
amended from time to time (or any successor statute
thereto).
Collection Accounts: The accounts established and maintained
by a Servicer in accordance with Section 3.05.
Collection Period: With respect to any Distribution Date,
the
period from the second day of the month immediately preceding
such Distribution
Date to and including the first day of the month of such
Distribution Date.
Combined Loan-to-Value Ratio: With respect to any Mortgage
Loan and as of any date of determination, the fraction
(expressed as a
percentage) the numerator of which is the sum of (i) original
principal balance
of the related Mortgage Loan at such date of determination and
(ii) the unpaid
principal balance of the related First Mortgage Loan as of the
date of
origination of that Mortgage Loan and the denominator of which
is (a) with
respect to a refinanced Mortgage Loan, the Appraised Value of
the related
Mortgaged Property at origination and (b) with respect to all
other Mortgage
Loans, the lesser of (i) the Appraised Value of the related
Mortgage Property at
origination and (ii) the purchase price of the related Mortgaged
Property.
Compensating Interest Payment: For any Distribution Date, an
amount to be paid by the applicable Servicer for such
Distribution Date, equal
to the lesser of (i) an amount equal to 0.25% per annum on the
aggregate Stated
Principal Balance of the related Mortgage Loans otherwise
payable to the related
Servicer on such Distribution Date (prior to giving effect to
any Scheduled
Payments due on the Mortgage Loans on such Due Date) and (ii)
the aggregate
Prepayment Interest Shortfall for the Mortgage Loans being
serviced by the
related Servicer relating to Principal Prepayments received
during the related
Prepayment Period.
Corporate Trust Office: The designated office of the Trustee
in the State of New York at which at any particular time its
corporate trust
business with respect to this Agreement shall be administered,
which office at
the date of the execution of this Agreement is located at 4 New
York Plaza, 6th
Floor, New York, New York 10004-2477, Attention: Institutional
Trust
Services/Global Debt: Home Equity Mortgage Trust-2005-2.
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Corresponding Certificate: With respect to (i) REMIC 2
Regular
Interest MTI-P, (ii) REMIC 2 Regular Interest MTI-R, (iii) REMIC
2 Regular
Interest MTI-A-1, (iv) REMIC 2 Regular Interest MTI-A-2, (v)
REMIC 2 Regular
Interest MTI-A-3, (vi) REMIC 2 Regular Interest MTI-M-1, (vii)
REMIC 2 Regular
Interest MTI-M-2, (viii) REMIC 2 Regular Interest MTI-M-3, (ix)
REMIC 2 Regular
Interest MTI-M-4, (x) REMIC 2 Regular Interest MTI-M-5, (xi)
REMIC 2 Regular
Interest MTI-M-6, (xii) REMIC 2 Regular Interest MTI-M-7, (xiii)
REMIC 2 Regular
Interest MTI-M-8, (xiv) REMIC 2 Regular Interest MTI-M-9, (xv)
REMIC 2 Regular
Interest MTI-B-1, (xvi) REMIC 2 Regular Interest MTI-B-2 and
(xvii) REMIC 2
Regular Interest MTI-S, the (i) Class P Certificates, (ii) Class
A-R
Certificates, (iii) Class A-1 Certificates, (iv) Class A-2
Certificates, (v)
Class A-3 Certificates, (vi) Class M-1 Certificates, (vii) Class
M-2
Certificates, (viii) Class M-3 Certificates, (ix) Class M-4
Certificates, (x)
Class M-5 Certificates, (xi) Class M-6 Certificates, (xii) Class
M-7
Certificates, (xiii) Class M-8 Certificates, (xiv) Class M-9
Certificates, (xv)
Class B-1 Certificates, (xvi) Class B-2 Certificates and (xvii)
Class X-S
Certificates, respectively.
Corresponding Uncertificated Interest: With respect to (i)
REMIC 1 Regular Interest LTI-P and (ii) REMIC 1 Regular Interest
LTI-R, (i)
REMIC 2 Regular Interest MTI-P and (ii) REMIC 2 Regular Interest
MTI-R,
respectively.
Credit Risk Manager: The Murrayhill Company, a Colorado
corporation.
Credit Risk Management Agreement: Either of the agreements
between Wilshire or IndyMac and the Credit Risk Manager dated as
of March 30,
2005.
Credit Risk Manager Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at
the Credit Risk
Manager Fee Rate on the Stated Principal Balance of such
Mortgage Loan as of the
Due Date in the month of such Distribution Date (prior to giving
effect to any
Scheduled Payments due on such Mortgage Loan on such Due
Date).
Credit Risk Manager Fee Rate: .0175% per annum.
CSFB: Credit Suisse First Boston LLC, a Delaware limited
liability company, and its successors and assigns.
Cumulative Loss Event: For any Distribution Date, a
Cumulative
Loss Event is occurring if Cumulative Net Realized Losses on the
Mortgage Loans
equal or exceed the percentage of the Aggregate Collateral
Balance as of the
Cut-off Date for that Distribution Date as specified below:
<TABLE>
<CAPTION>
DISTRIBUTION DATE PERCENTAGE OF AGGREGATE COLLATERAL BALANCE
----------------- ------------------------------------------
<S> <C>
April 2005 - March 2008................ N.A.
April 2008 - March 2009................ 4.00% for the first
month, plus an additional 1/12th of 2.75% for each
month thereafter
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
April 2009 - March 2010................ 6.75% for the first
month, plus an additional 1/12th of 1.25% for each
month thereafter
April 2010 - March 2011................ 8.00% for the first
month, plus an additional 1/12th of 0.85% for each
month thereafter
April 2011 and thereafter.............. 8.85%
</TABLE>
Cumulative Net Realized Losses: As to any date of
determination the aggregate amount of Realized Losses as reduced
by any Net
Recoveries received on Charged Off Loans.
Current Interest: For any Class of Certificates and
Distribution Date, the amount of interest accruing at the
applicable
Pass-Through Rate on the related Class Principal Balance, or
Notional Amount, as
applicable, of such Class during the related Interest Accrual
Period; provided,
that if and to the extent that on any Distribution Date the
Interest Remittance
Amount is less than the aggregate distributions required
pursuant to Section
4.02(b)(i)A-M without regard to this proviso, then the Current
Interest on each
such Class will be reduced, on a pro rata basis in proportion to
the amount of
Current Interest for each Class without regard to this proviso,
by the lesser of
(i) the amount of the deficiency described above in this proviso
and (ii) the
related Interest Shortfall for such Distribution Date.
Curtailment: Any payment of principal on a Mortgage Loan,
made
by or on behalf of the related Mortgagor, other than a Scheduled
Payment, a
prepaid Scheduled Payment or a Payoff, which is applied to
reduce the
outstanding Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: The agreement, among the Trustee, the
Custodian and the Depositor providing for the safekeeping of any
documents or
instruments referred to in Section 2.01 on behalf of the
Certificateholders,
attached hereto as Exhibit R.
Custodian: LaSalle Bank National Association, a national
banking association, or any successor custodian appointed
pursuant to the terms
of the Custodial Agreement. Each Custodian so appointed shall
act as agent on
behalf of the Trustee, and shall be compensated by the
Depositor. The Trustee
shall remain at all times responsible under the terms of this
Agreement,
notwithstanding the fact that certain duties have been assigned
to a Custodian.
Cut-off Date: For any Mortgage Loan, other than a Subsequent
Mortgage Loan, March 1, 2005. For any Subsequent Mortgage Loan,
the applicable
Subsequent Transfer Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on
the Cut-off
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required
to be repurchased pursuant to Section 2.02 or 2.03.
Deferred Amount: For any Class of Class M Certificates or
Class B Certificates and any Distribution Date, will equal the
amount by which
(x) the aggregate of the Applied Loss
12
<PAGE>
Amounts previously applied in reduction of the Class Principal
Balance thereof
exceeds (y) the sum of (i) the aggregate of amounts previously
paid in
reimbursement thereof and (ii) the amount of the increase in the
related Class
Principal Balance due to the receipt of Net Recoveries as
provided in Section
4.02(vii).
Definitive Certificates: Any Certificate issued in lieu of a
Book-Entry Certificate pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: For any month, a fraction, expressed as a
percentage, the numerator of which is the aggregate outstanding
principal
balance of all Mortgage Loans 60 or more days delinquent
(including all
foreclosures and REO Properties) as of the close of business on
the last day of
such month, and the denominator of which is the Aggregate
Collateral Balance as
of the close of business on the last day of such month.
Denomination: With respect to each Certificate, the amount
set
forth on the face thereof as the "Initial Certificate Balance of
this
Certificate" or the "Initial Notional Amount of this
Certificate" or, if neither
of the foregoing, the Percentage Interest appearing on the face
thereof.
Depositor: Credit Suisse First Boston Mortgage Securities
Corp., a Delaware corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository
Trust Company, the nominee of which is CEDE & Co., as the
registered Holder of
the Book-Entry Certificates. The Depository shall at all times
be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time
a Depository
effects book-entry transfers and pledges of securities deposited
with the
Depository.
Determination Date: As to any Distribution Date, the second
Business Day immediately following the 15th day of the month of
such
Distribution Date.
Distribution Date: The 25th day of each month or if such day
is not a Business Day, the first Business Day thereafter,
commencing in April
2005.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation,
and
its successors and assigns.
Due Date: With respect to any Distribution Date and any
Mortgage Loan, the day during the related Due Period on which
the Scheduled
Payment is due.
13
<PAGE>
Due Period: With respect to each Distribution Date, the
period
commencing on the second day of the month preceding the month of
the
Distribution Date and ending on the first day of the month of
the Distribution
Date.
Eligible Account: Either (i) an account or accounts
maintained
with a federal or state chartered depository institution or
trust company
acceptable to the Rating Agencies or (ii) an account or accounts
the deposits in
which are insured by the FDIC to the limits established by such
corporation,
provided that any such deposits not so insured shall be
maintained in an account
at a depository institution or trust company whose commercial
paper or other
short term debt obligations (or, in the case of a depository
institution or
trust company which is the principal subsidiary of a holding
company, the
commercial paper or other short term debt obligations of such
holding company)
have been rated by Moody's and Fitch in its highest short-term
rating category
and by S&P at least "A-1+", or (iii) a segregated trust
account or accounts
(which shall be a "special deposit account") maintained with the
Trustee or any
other federal or state chartered depository institution or trust
company, acting
in its fiduciary capacity, in a manner acceptable to the Trustee
and the Rating
Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of
maturity not
later than the Determination Date in each month:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, or any agency
or
instrumentality of the United States of America the obligations
of
which are backed by the full faith and credit of the United
States of
America; or obligations fully guaranteed by, the United States
of
America; Freddie Mac, Fannie Mae, the Federal Home Loan Banks or
any
agency or instrumentality of the United States of America rated
AA or
higher by the Rating Agencies;
(ii) federal funds, demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by,
any
depository institution or trust company incorporated or
organized under
the laws of the United States of America or any state thereof
and
subject to supervision and examination by federal and/or state
banking
authorities, so long as at the time of such investment or
contractual
commitment providing for such investment the commercial paper or
other
short-term debt obligations of such depository institution or
trust
company (or, in the case of a depository institution or trust
company
which is the principal subsidiary of a holding company, the
commercial
paper or other short-term debt obligations of such holding
company) are
rated in one of two of the highest ratings by each of the
Rating
Agencies, and the long-term debt obligations of such
depository
institution or trust company (or, in the case of a
depository
institution or trust company which is the principal subsidiary
of a
holding company, the long-term debt obligations of such
holding
company) are rated in one of two of the highest ratings, by each
of the
Rating Agencies;
(iii) repurchase obligations with a term not to exceed 30
days with respect to any security described in clause (i) above
and
entered into with a depository institution or
14
<PAGE>
trust company (acting as a principal) rated "A" or higher by
Moody's,
"A-1" or higher by S&P and "F-1" or higher by Fitch;
provided, however,
that collateral transferred pursuant to such repurchase
obligation must
be of the type described in clause (i) above and must (A) be
valued
daily at current market price plus accrued interest, (B)
pursuant to
such valuation, be equal, at all times, to 105% of the cash
transferred
by the Trustee in exchange for such collateral, and (C) be
delivered to
the Trustee or, if the Trustee is supplying the collateral, an
agent
for the Trustee, in such a manner as to accomplish perfection of
a
security interest in the collateral by possession of
certificated
securities;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the
United
States of America or any state thereof which has a long-term
unsecured
debt rating in the highest available rating category of each of
the
Rating Agencies at the time of such investment;
(v) commercial paper having an original maturity of less
than 365 days and issued by an institution having a
short-term
unsecured debt rating in the highest available rating category
of
Moody's and Fitch and rated "A-1+" by S&P at the time of
such
investment;
(vi) a guaranteed investment contract approved by each of
the Rating Agencies and issued by an insurance company or
other
corporation having a long-term unsecured debt rating in the
highest
available rating category of each of the Rating Agencies at the
time of
such investment;
(vii) which may be 12b-1 funds as contemplated under the
rules promulgated by the Securities and Exchange Commission
under the
Investment Company Act of 1940) having ratings in the highest
available
rating category of Moody's and Fitch and or "AAAm" or "AAAm-G"
by S&P
at the time of such investment (any such money market funds
which
provide for demand withdrawals being conclusively deemed to
satisfy any
maturity requirements for Eligible Investments set forth
herein)
including money market funds of a Servicer or the Trustee and
any such
funds that are managed by a Servicer or the Trustee or their
respective
Affiliates or for a Servicer or the Trustee or any Affiliate of
either
acts as advisor, as long as such money market funds satisfy
the
criteria of this subparagraph (vii); and
(viii) such other investments the investment in which will
not, as evidenced by a letter from each of the Rating Agencies,
result
in the downgrading or withdrawal of the Ratings of the
Certificates.
provided, however, that no such instrument shall be an Eligible
Investment if
such instrument evidences either (i) a right to receive only
interest payments
with respect to the obligations underlying such instrument, or
(ii) both
principal and interest payments derived from obligations
underlying such
instrument and the principal and interest payments with respect
to such
instrument provide a yield to maturity of greater than 120% of
the yield to
maturity at par of such underlying obligations.
15
<PAGE>
ERISA: The Employee Retirement Income Security Act of 1974,
as
amended.
ERISA-Restricted Certificates: As specified in the
Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by each Servicer pursuant to Section 3.06.
Escrow Mortgage Loan: Any Mortgage Loan for which the
related
Servicer has established an Escrow Account for items
constituting Escrow
Payments.
Escrow Payments: With respect to any Mortgage Loan, the
amounts constituting ground rents, taxes, mortgage insurance
premiums, fire and
hazard insurance premiums, and any other payments required to be
escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage,
applicable law or any
other related document.
Event of Default: As defined in Section 7.01.
Excess Cashflow Loss Payment: As defined in Section
4.02(b)(iv)(A).
Excess Servicing Fee: With respect to the Wilshire Serviced
Loans and any Distribution Date, an amount equal to one month's
interest at the
Excess Servicing Fee Rate on the Class X-S Notional Amount for
such Distribution
Date.
Excess Servicing Fee Rate: The excess, if any, of 0.50% over
the "Wilshire Servicing Fee Rate" as defined in the Wilshire
Letter Agreement.
Expense Fees: As to each Mortgage Loan, the sum of the
related
Servicing Fee, the Excess Servicing Fee, the Credit Risk Manager
Fee and the
Trustee Fee.
Expense Fee Rate: As to each Mortgage Loan, the sum of the
related Servicing Fee Rate, the Excess Servicing Fee Rate, if
applicable, the
Credit Risk Manager Fee Rate and the Trustee Fee Rate.
Fair Market Value: The fair market value of all of the
property of the Trust, as agreed upon between the Optional
Termination Holder
and a majority of the Holders of the Class A-RL Certificates;
provided, however,
that if the Optional Termination Holder and a majority of the
Holders of the
Class A-RL Certificates do not agree upon the fair market value
of all the
property of the Trust, the Trustee shall solicit, or cause the
solicitation of,
good faith bids for all of the property of the Trust until it
has received three
bids from institutions that are regular purchasers and/or
sellers in the
secondary market of residential whole mortgage loans similar to
the Mortgage
Loans, and the Fair Market Value shall be equal to the highest
of such three
bids.
Fannie Mae: Fannie Mae, a federally chartered and privately
owned corporation organized and existing under the Federal
National Mortgage
Association Charter Act, or any successor thereto.
16
<PAGE>
Fannie Mae Guides: The Fannie Mae Sellers' Guide and the
Fannie Mae Servicers' Guide and all amendments or additions
thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
First Mortgage Loan: A Mortgage Loan that is secured by a
first lien on the Mortgaged Property securing the related
Mortgage Note.
Fitch: Fitch, Inc., or any successor thereto.
Foreclosure Restricted Loan: Any Mortgage Loan that is 60 or
more days delinquent as of the Closing Date, unless such
Mortgage Loan has
become current for three consecutive Scheduled Payments after
the Closing Date.
Freddie Mac: Freddie Mac, a corporate instrumentality of the
United States created and existing under Title III of the
Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class
of Subordinate Certificates then outstanding with a Class
Principal Balance
greater than zero, with the highest priority for payments
pursuant to Section
4.02, in the following order of decreasing priority: Class M-1,
Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9, Class B-1
and Class B-2 Certificates.
IndyMac: Indymac Bank, F.S.B., a federal savings bank.
IndyMac Serviced Loans: The Mortgage Loans identified as
such
on the Mortgage Loan Schedule.
Initial Mortgage Loan: A Mortgage Loan conveyed to the Trust
on the Closing Date pursuant to this Agreement as identified on
the Mortgage
Loan Schedule delivered to the Trustee on the Closing Date.
Initial Mortgage Loan Net WAC Rate: A per annum rate equal
to
the weighted average of the Net Mortgage Rates of the Initial
Mortgage Loans.
Indirect Participant: A broker, dealer, bank or other
financial institution or other Person that clears through or
maintains a
custodial relationship with a Depository Participant.
Insurance Proceeds: Proceeds paid under any Insurance Policy
covering a Mortgage Loan to the extent the proceeds are not (i)
applied to the
restoration of the related Mortgaged Property, (ii) applied to
the satisfaction
of any related First Mortgage Loan or (iii)
17
<PAGE>
released to the Mortgagor in accordance with the procedures that
the Servicer
would follow in servicing mortgage loans held for its own
account.
Interest Accrual Period: With respect to each Distribution
Date, (i) with respect to the Class A-1, Class A-2, Class A-3,
Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9
Certificates, the period commencing on the immediately preceding
Distribution
Date (or the Closing Date, in the case of the first Distribution
Date) and
ending on the day immediately preceding the related Distribution
Date, and (ii)
with respect to the Class B-1, Class B-2, Class A-R, Class A-RL,
Class P, Class
X-1 and Class X-S Certificates, the calendar month prior to the
month of such
Distribution Date.
Interest Remittance Amount: For any Distribution Date, an
amount equal to the sum of (1) all interest collected (other
than Payaheads and
Simple Interest Excess, if applicable) or advanced in respect of
Scheduled
Payments on the Mortgage Loans during the related Due Period,
the interest
portion of Payaheads previously received and intended for
application in the
related Due Period and the interest portion of all Payoffs and
Curtailments
received on the Mortgage Loans during the related Prepayment
Period, less (x)
the Expense Fee (other than the Excess Servicing Fee) with
respect to such
Mortgage Loans and (y) unreimbursed Advances and other amounts
due to a Servicer
or the Trustee with respect to such Mortgage Loans, to the
extent allocable to
interest, (2) all Compensating Interest Payments paid by each
Servicer with
respect to the Mortgage Loans it is servicing and such
Distribution Date, (3)
the portion of any Substitution Adjustment Amount or Repurchase
Price paid with
respect to such Mortgage Loans during the calendar month
immediately preceding
the Distribution Date allocable to interest, (4) all Liquidation
Proceeds, Net
Recoveries and any Insurance Proceeds and other recoveries (net
of unreimbursed
Advances, Servicing Advances and expenses, to the extent
allocable to interest,
and unpaid Servicing Fees) collected with respect to the
Mortgage Loans during
the prior calendar month, to the extent allocable to interest
and (5) any
amounts withdrawn from the Simple Interest Excess Sub-Account to
pay interest on
the Certificates with respect to such Distribution Date. If on
any Determination
Date the amount deposited into a Collection Account with respect
to Compensating
Interest is the amount calculated in clause (ii) of the
definition of
Compensating Interest Payment for such Distribution Date, the
excess of (x)
0.25% per annum on the aggregate Stated Principal Balance of the
related
Mortgage Loans over (y) the related Compensating Interest
Payment for such
Distribution Date shall be available to cover any Net Simple
Interest Shortfalls
on the related Mortgage Loans remaining on such Distribution
Date, after giving
effect to the withdrawal from the related Simple Interest Excess
Sub-Account
pursuant to Section 3.06(f) on such Distribution Date.
Interest Shortfall: For any Distribution Date, the aggregate
shortfall, if any, in collections of interest for the previous
month (adjusted
to the related Net Mortgage Rate) on Mortgage Loans resulting
from (a) Principal
Prepayments received during the related Prepayment Period to the
extent not
covered by Compensating Interest and (b) Relief Act
Reductions.
Last Scheduled Distribution Date: With respect to each Class
of Certificates, the Distribution Date in July 2035.
18
<PAGE>
Latest Possible Maturity Date: For purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity
date" of all interests created in REMIC 1, REMIC 2 and REMIC 3
shall be July 25,
2035.
LIBOR: For any Interest Accrual Period other than the first
Interest Accrual Period, the rate for United States dollar
deposits for one
month which appears on the Dow Jones Telerate Screen Page 3750
as of 11:00 A.M.,
London, England time, on the second LIBOR Business Day prior to
the first day of
such Interest Accrual Period. With respect to the first Interest
Accrual Period,
the rate for United States dollar deposits for one month which
appears on the
Dow Jones Telerate Screen Page 3750 as of 11:00 A.M., London,
England time, two
LIBOR Business Days prior to the Closing Date. If such rate does
not appear on
such page (or such other page as may replace that page on that
service, or if
such service is no longer offered, such other service for
displaying LIBOR or
comparable rates as may be reasonably selected by the Trustee),
the rate will be
the Reference Bank Rate. If no such quotations can be obtained
and no Reference
Bank Rate is available, LIBOR will be the LIBOR applicable to
the Interest
Accrual Period preceding the next applicable Distribution
Date.
LIBOR Business Day: Any day other than (i) a Saturday or a
Sunday or (ii) a day on which banking institutions in the State
of New York or
in the city of London, England are required or authorized by law
to be closed.
LIBOR Certificates: The Class A-1, Class A-2, Class A-3,
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8
and Class M-9 Certificates.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property)
which was
liquidated or for which payments under the related private
mortgage insurance
policy, hazard insurance policy or any condemnation proceeds
were received, in
the calendar month preceding the month of such Distribution Date
and as to which
the related Servicer has determined (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 the
related 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 similar
disposition 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, in each case, which, for the avoidance of
doubt, is
remaining after, or not otherwise required to be applied to, the
satisfaction of
any related First Mortgage Loan, less the sum of related
unreimbursed Expense
Fees, Servicing Advances, Advances and reasonable out-of-pocket
expenses.
Majority in Interest: As to any Class of Regular
Certificates
or the Class X-2 Certificates, the Holders of Certificates of
such Class
evidencing, in the aggregate, at least 51% of the Percentage
Interests evidenced
by all Certificates of such Class.
19
<PAGE>
Marker Rate: With respect to the Class X-1 Certificates and
any Distribution Date, a per annum rate equal to two (2) times
the weighted
average of the Uncertificated REMIC 2 Pass-Through Rates for
REMIC 2 Regular
Interests MTI-A-1, MTI-A-2, MTI-A-3, MTI-M-1, MTI-M-2, MTI-M-3,
MTI-M-4,
MTI-M-5, MTI-M-6, MTI-M-7, MTI-M-8, MTI-M-9, MTI-B-1, MTI-B-2
and MTI-ZZ, with
the rates on the REMIC 2 Regular Interests MTI-A-1, MTI-A-2,
MTI-A-3, MTI-M-1,
MTI-M-2, MTI-M-3, MTI-M-4, MTI-M-5, MTI-M-6, MTI-M-7, MTI-M-8
and MTI-M-9,
subject to a cap, for the purpose of this calculation, equal to
the lesser of
(A) LIBOR plus the Certificate Margin for the Corresponding
Certificate and (B)
the REMIC 2 Net WAC Rate, with the rate on the REMIC 2 Regular
Interest MTI-B-1
subject to a cap, for purposes of this calculation, equal to the
lesser of (A)
7.00% per annum on or prior to the Optional Termination Date and
7.50% per annum
after the Optional Termination Date and (B) the REMIC 2 Net WAC
Rate, with the
rate on the REMIC 2 Regular Interest MTI-B-2 subject to a cap,
for purposes of
this calculation, equal to the lesser of (A) 7.00% per annum on
or prior to the
Optional Termination Date and 7.50% per annum after the Optional
Termination
Date and (B) the REMIC 2 Net WAC Rate and with the rate on the
REMIC 2 Regular
Interest MTI-ZZ subject to a cap, for the purpose of this
calculation, equal to
zero.
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(R) System: The system of recording transfers of
Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
MOM Loan: With respect to any Mortgage Loan, MERS acting as
the mortgagee of such Mortgage Loan, solely as nominee for the
originator of
such Mortgage Loan and its successors and assigns, at the
origination thereof.
Monthly Excess Cashflow: For any Distribution Date, an
amount
equal to the sum of (1) the Monthly Excess Interest and (2)
the
Overcollateralization Release Amount, if any, for such date.
Monthly Excess Interest: As to any Distribution Date, the
sum
of (A) the Interest Remittance Amount remaining after the
application of
payments pursuant to clauses A. through N. of Section 4.02(b)(i)
plus (B) the
Principal Payment Amount remaining after the application of
payments pursuant to
clauses A. through M. of Section 4.02(b)(ii) or (iii).
Monthly Statement: The statement delivered to the
Certificateholders pursuant to Section 4.06.
20
<PAGE>
Moody's: Moody's Investors Service, Inc., or any successor
thereto. For purposes of Section 10.05(b) the address for
notices to Moody's
shall be Moody's Investors Service, Inc., 99 Church Street, New
York, New York
10007, Attention: Residential Pass-Through Monitoring, or such
other address as
Moody's may hereafter furnish to the Depositor, the Servicers
and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
creating a first or second lien on an estate in fee simple or
leasehold interest
in real property securing a Mortgage Note.
Mortgage File: The Mortgage documents listed in Section
2.01(b) hereof pertaining to a particular Initial Mortgage Loan
or Subsequent
Mortgage Loan and any additional documents delivered to the
Trustee to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof as
from time to time
are held as a part of the Trust Fund (including any REO
Property), the mortgage
loans so held being identified in the Mortgage Loan Schedule,
notwithstanding
foreclosure or other acquisition of title of the related
Mortgaged Property.
Mortgage Loan Purchase Price: The price, calculated as set
forth in Section 9.01, to be paid in connection with the
purchase of the Trust
Collateral by the Auction Purchaser.
Mortgage Loan Schedule: The Mortgage Loan Schedule which
will
list the Mortgage Loans (as from time to time amended by the
Seller to reflect
the addition of Qualified Substitute Mortgage Loans and the
purchase of Mortgage
Loans pursuant to Section 2.01(f), 2.02 or 2.03) transferred to
the Trustee as
part of the Trust Fund and from time to time subject to this
Agreement, attached
hereto as Schedule I, setting forth the following information
with respect to
each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) [reserved];
(iii) the zip code of the Mortgaged Property;
(iv) a code indicating the type of Mortgaged Property and
the occupancy status.
(v) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on
the
original amortization schedule and, if different, the
maturity
expressed in the same manner but based on the actual
amortization
schedule;
(vi) the Combined Loan-to-Value Ratio at origination;
(vii) the Mortgage Rate as of the Cut-off Date;
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(viii) the stated maturity date;
(ix) the amount of the Scheduled Payment as of the Cut-off
Date;
(x) the original principal amount of the Mortgage Loan;
(xi) the principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date, after deduction of
payments of
principal due on or before the Cut-off Date whether or not
collected;
(xii) a code indicating the purpose of the Mortgage Loan
(i.e., purchase, rate and term refinance, equity take-out
refinance);
(xiii) the Net Mortgage Rate as of the Cut-off Date;
(xiv) the Originator of the related Mortgage Loan;
(xv) the Servicing Fee Rate;
(xvi) the related sub-servicer;
(xvii) a code indicating whether a Mortgage Loan is subject
to a Prepayment Charge;
(xviii) the amount of the Prepayment Charge with respect to
each Mortgage Loan and a code identifying whether such
Prepayment
Charge is related to a Curtailment or Payoff;
(xix) whether such Mortgage Loan is a Balloon Loan;
(xx) whether such Mortgage Loan is a Wilshire Serviced
Loan or an IndyMac Serviced Loan;
(xxi) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan and, if so, its corresponding MIN; and
(xxii) whether such Mortgage Loan is a Simple Interest
Mortgage Loan.
With respect to the Mortgage Loans in the aggregate, each,
the
Mortgage Loan Schedule shall set forth the following
information, as of the
Cut-off Date:
(i) the number of Mortgage Loans; and
(ii) the current aggregate principal balance of the
Mortgage Loans as of the close of business on the Cut-off Date,
after
deduction of payments of principal due on or before the Cut-off
Date
whether or not collected.
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Mortgage Note: The original executed note or other evidence
of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan.
Mortgage Rate: The annual fixed rate of interest borne by a
Mortgage Note.
Mortgaged Property: The underlying real property securing a
Mortgage Loan.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and
Loan, a fraction, expressed as a percentage, the numerator of
which is equal to
the excess of (x) the aggregate Stated Principal Balance for
such Distribution
Date of the Mortgage Loans, multiplied by the weighted average
Net Mortgage Rate
of such Mortgage Loans over (y) the Interest Remittance Amount
for such
Distribution Date, and the denominator of which is an amount
equal to the
aggregate Stated Principal Balance for such Distribution Date of
the Mortgage
Loans, multiplied by the actual number of days elapsed in the
related Interest
Accrual Period divided by 360.
Net Funds Cap: As to any Distribution Date, will be a per
annum rate equal to (a) a fraction, expressed as a percentage,
(a) the numerator
of which is (1) the amount of interest accrued on the Mortgage
Loans for such
date, minus (2) the Expense Fee, and (b) the denominator of
which is the product
of (i) the Aggregate Collateral Balance immediately preceding
such Distribution
Date (or as of the Cut-off Date in the case of the first
Distribution Date),
multiplied by (ii)(x) in the case of the Class B-1, Class B-2,
Class A-R, Class
A-RL and Class P Certificates, 1/12 and (y) in the case of the
Class A-1, Class
A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class
M-6, Class M-7, Class M-8 and Class M-9 Certificates, the actual
number of days
in the related Interest Accrual Period divided by 360. For
federal income tax
purposes, however, as to any Distribution Date will be the
equivalent of the
foregoing, expressed as a per annum rate equal to the weighted
average of the
Uncertificated Pass-Through Rates on the REMIC 2 Regular
Interests (other than
the REMIC 2 Regular Interest MTI-P and the REMIC 2 Regular
Interest MTI-R)
multiplied by (in the case of the Class A-1, Class A-2, Class
A-3, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and
Class M-9 Certificates) 30 divided by the actual number of days
in the related
Interest Accrual Period.
Net Mortgage Rate: As to each Mortgage Loan, and at any
time,
the per annum rate equal to the Mortgage Rate less the related
Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution
Date, the amount, if any, by which the aggregate of Prepayment
Interest
Shortfalls during the Prepayment Period exceeds the Compensating
Interest
Payment for such Distribution Date.
Net Recovery: Any proceeds received by a Servicer on a
delinquent or Charged Off Loan (including any Liquidation
Proceeds received on a
Charged Off Loan), net of any Servicing Fee, Ancillary Income
and any other
related expenses.
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Net Simple Interest Excess: As of any Distribution Date, an
amount equal to the excess, if any, of the aggregate amount of
Simple Interest
Excess with respect to the Mortgage Loans over the amount of
Simple Interest
Shortfall with respect to the Mortgage Loans.
Net Simple Interest Shortfall: As of any Distribution Date,
an
amount equal to the excess, if any, of the aggregate amount of
Simple Interest
Shortfall with respect to the Mortgage Loans over the amount of
Simple Interest
Excess with respect to the Mortgage Loans.
Nonrecoverable Advance: Any portion of an Advance or
Servicing
Advance previously made or proposed to be made by the applicable
Servicer that,
in the good faith judgment of the applicable Servicer, will not
be ultimately
recoverable by the applicable Servicer from the related
Mortgagor, related
Liquidation Proceeds or otherwise.
Notional Amount: The Class X-1 Notional Amount or the Class
X-S Notional Amount, as applicable.
Notional Amount Certificates: As specified in the
Preliminary
Statement.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by the Chairman
of
the Board or the Vice Chairman of the Board or the President or
a Vice President
or an Assistant Vice President or the Treasurer or the Secretary
or one of the
Assistant Treasurers or Assistant Secretaries of a Servicer or
the Depositor,
and delivered to the Depositor or the Trustee, as the case may
be, as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Depositor or a Servicer, including in-house
counsel, reasonably
acceptable to the Trustee; provided, however, that with respect
to the
interpretation or application of the REMIC Provisions, such
counsel must (i) in
fact be independent of the Depositor and any Servicer, (ii) not
have any
material direct financial interest in the Depositor or any
Servicer or in any
affiliate of either, and (iii) not be connected with the
Depositor or any
Servicer as an officer, employee, promoter, underwriter,
trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created
hereunder in connection with the purchase of the Mortgage Loans
pursuant to
Section 9.01.
Optional Termination Date: The first date on which the
Optional Termination may be exercised.
Optional Termination Holder: Wilshire, as Servicer, or any
successor servicer to Wilshire appointed by the Seller, so long
as the Seller is
the owner of the servicing rights.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
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Outstanding: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and
authenticated under
this Agreement except: (i) Certificates theretofore canceled by
the Trustee or
delivered to the Trustee for cancellation; and (ii) Certificates
in exchange for
which or in lieu of which other Certificates have been executed
and delivered by
the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage
Loan
with a Stated Principal Balance greater than zero which was not
the subject of a
Payoff prior to such Due Date and which did not become a
Liquidated Mortgage
Loan or Charged Off Loan prior to such Due Date.
Overcollateralization Amount: For any Distribution Date, an
amount equal to the amount, if any, by which (x) the Aggregate
Collateral
Balance for such Distribution Date exceeds (y) the aggregate
Class Principal
Balance of the Certificates after giving effect to payments on
such Distribution
Date.
Overcollateralization Release Amount: For any Distribution
Date, an amount equal to the lesser of (x) the Principal
Remittance Amount for
such Distribution Date and (y) the amount, if any, by which (1)
the
Overcollateralization Amount for such date, calculated for this
purpose on the
basis of the assumption that 100% of the aggregate of the
Principal Remittance
Amount and Excess Cashflow Loss Payment for such date is applied
on such date in
reduction of the aggregate of the Class Principal Balances of
the Certificates
(to an amount not less than zero), exceeds (2) the Targeted
Overcollateralization Amount for such date.
Ownership Interest: As to any Residual Certificate, any
ownership or security interest in such Certificate including any
interest in
such Certificate as the Holder thereof and any other interest
therein, whether
direct or indirect, legal or beneficial.
Par Value: As defined in Section 9.01 hereof; provided that
the "Par Value" for any Auction Date shall also include the
auction expenses of
the Trustee (which auction expenses shall not exceed
$25,000).
Pass-Through Rate: With respect to the Class A-1, Class A-2,
Class A-3, Class A-R, Class A-RL, Class P, Class M-1, Class M-2,
Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class
M-9, Class B-1 and
Class B-2 Certificates, the Class A-1 Pass-Through Rate, the
Class A-2
Pass-Through Rate, the Class A-3 Pass-Through Rate, Class A-R
Pass-Through Rate,
Class A-RL Pass-Through Rate, Class P Pass-Through Rate, Class
M-1 Pass-Through
Rate, Class M-2 Pass-Through Rate, Class M-3 Pass-Through Rate,
Class M-4
Pass-Through Rate, Class M-5 Pass-Through Rate, Class M-6
Pass-Through Rate,
Class M-7 Pass-Through Rate, Class M-8 Pass-Through Rate, Class
M-9 Pass-Through
Rate, Class B-1 Pass-Through Rate and Class B-2 Pass-Through
Rate.
With respect to the Class X-1 Certificates and any Distribution
Date, a per
annum rate equal to the percentage equivalent of a fraction, the
numerator of
which is the sum of the amounts calculated pursuant to clauses
(A) through (P)
below, and the denominator of which is the
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aggregate of the Uncertificated Principal Balances of REMIC 2
Regular Interest
MTI-AA, REMIC 2 Regular Interest MTI-A-1, REMIC 2 Regular
Interest MTI-A-2,
REMIC 2 Regular Interest MTI-A-3, REMIC 2 Regular Interest
MTI-M-1, REMIC 2
Regular Interest MTI-M-2, REMIC 2 Regular Interest MTI-M-3,
REMIC 2 Regular
Interest MTI-M-4, REMIC 2 Regular Interest MTI-M-5, REMIC 2
Regular Interest
MTI-M-6, REMIC 2 Regular Interest MTI-M-7, REMIC 2 Regular
Interest MTI-M-8,
REMIC 2 Regular Interest MTI-M-9, REMIC 2 Regular Interest
MTI-B-1, REMIC 2
Regular Interest MTI-B-2 and REMIC 2 Regular Interest MTI-ZZ.
For purposes of
calculating the Pass-Through Rate for the Class X-1
Certificates, the numerator
is equal to the sum of the following components:
(A) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-AA minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-AA;
(B) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-A-1 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-A-1;
(C) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-A-2 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-A-2;
(D) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-A-3 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-A-3;
(E) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-1 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-1;
(F) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-2 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-2;
(G) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-3 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-3;
(H) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-4 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-4;
(I) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-5 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-5;
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(J) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-6 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-6;
(K) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-7 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-7;
(L) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-8 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-8;
(M) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-M-9 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-M-9;
(N) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-B-1 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-B-1;
(O) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-B-2 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-B-2; and
(P) the Uncertificated REMIC 2 Pass-Through Rate for
REMIC 2 Regular Interest MTI-ZZ minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest
MTI-ZZ.
Payahead: Any Scheduled Payment intended by the related
Mortgagor to be applied in a Due Period subsequent to the Due
Period in which
such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to
the entire outstanding Stated Principal Balance of such Mortgage
Loan, if
received in advance of the last scheduled Due Date for such
Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid
interest on the
Mortgage Loan to the date of such payment-in-full.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made
on the related
Class, such percentage interest being set forth on the face
thereof or equal to
the percentage obtained by dividing the Denomination of such
Certificate by the
aggregate of the Denominations of all Certificates of the same
Class.
Permitted Transferee: Any person other than (i) the United
States, any State or political subdivision thereof, or any
agency or
instrumentality of any of the foregoing, (ii) a foreign
government,
International Organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization (except certain farmers'
cooperatives described
in section 521 of the Code) which is exempt from tax imposed by
Chapter 1 of the
Code (including the tax
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<PAGE>
imposed by section 511 of the Code on unrelated business taxable
income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code)
with respect to
any Residual Certificate, (iv) rural electric and telephone
cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person
that is not a
United States Person, and (vi) a Person designated as a
non-Permitted Transferee
by the Depositor based upon an Opinion of Counsel that the
Transfer of an
Ownership Interest in a Residual Certificate to such Person may
cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that
the
Certificates are outstanding. The terms "United States," "State"
and
"International Organization" shall have the meanings set forth
in section 7701
of the Code or successor provisions. A corporation will not be
treated as an
instrumentality of the United States or of any State or
political subdivision
thereof for these purposes if all of its activities are subject
to tax and, with
the exception of Freddie Mac, a majority of its board of
directors is not
selected by such government unit.
Person: Any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock
company, trust,
unincorporated organization or government, or any agency or
political
subdivision thereof.
Physical Certificates: As specified in the Preliminary
Statement.
Pre-Funding Account: The separate Eligible Account created
and
maintained by the Trustee with respect to the Mortgage Loans
pursuant to Section
3.05(f) in the name of the Trustee for the benefit of the
Certificateholders and
designated "JPMorgan Chase Bank, N.A., in trust for registered
holders of Home
Equity Mortgage Pass-Through Certificates, Series 2005-2." Funds
in the
Pre-Funding Account shall be held in trust for the
Certificateholders for the
uses and purposes set forth in this Agreement and shall not be a
part of any
REMIC created hereunder; provided, however, that any investment
income earned
from Eligible Investments made with funds in the Pre-Funding
Account shall be
for the account of the Depositor.
Pre-Funding Amount: The amount deposited in the Pre-Funding
Account on the Closing Date, which shall equal
$31,025,440.62.
Pre-Funding Period: the period from the Closing Date until
the
earliest of (i) the date on which the amount on deposit in the
Pre-Funding
Account is reduced to zero, (ii) the date on which an Event of
Default occurs or
(iii) June 24, 2005.
Prepayment Charge: With respect to any Mortgage Loan, any
charge required to be paid if the Mortgagor prepays such
Mortgage Loan as
provided in the related Mortgage Note or Mortgage.
Prepayment Interest Shortfall: As to any Mortgage Loan,
Distribution Date and Principal Prepayment, other than Principal
Prepayments in
full that occur during the portion of the Prepayment Period that
is in the same
calendar month as the Distribution Date, the difference between
(i) one full
month's interest at the applicable Mortgage Rate (giving effect
to any
applicable Relief Act Reduction), as reduced by the Expense Fee
Rate, on the
Stated Principal Balance of such Mortgage Loan immediately prior
to such
Principal Prepayment and (ii) the
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amount of interest actually received that accrued during the
month immediately
preceding such Distribution Date or, with respect to any
Mortgage Loan with a
Due Date other than the first of the month, the amount of
interest actually
received that accrued during the one-month period immediately
preceding the Due
Date following the Principal Prepayment, with respect to such
Mortgage Loan in
connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date
(other than the April 2005 Distribution Date), each Mortgage
Loan (other than
the IndyMac Serviced Loans) and each Payoff, the related
"Prepayment Period"
will be the 15th of the month preceding the month in which the
related
Distribution Date occurs through the 14th of the month in which
the related
Distribution Date occurs. With respect to the April 2005
Distribution Date, each
Mortgage Loan (other than the IndyMac Serviced Loans) and each
Payoff, the
related "Prepayment Period" will be March 1, 2005 through April
14, 2005. With
respect to each Distribution Date, each IndyMac Serviced Loan
and each
Curtailment with respect to the Wilshire Serviced Loans, the
related "Prepayment
Period" will be the calendar month preceding the month in which
the related
Distribution Date occurs.
Principal Payment Amount: For any Distribution Date, an
amount
equal to the Principal Remittance Amount plus any Excess
Cashflow Loss Payment
for such date, minus the Overcollateralization Release Amount,
if any, for such
date.
Principal Remittance Amount: For any Distribution Date, an
amount equal to the sum of (1) all principal collected (other
than Payaheads) or
advanced in respect of Scheduled Payments on the Mortgage Loans
during the
related Due Period (less unreimbursed Advances, Servicing
Advances and other
amounts due to each Servicer and the Trustee with respect to the
Mortgage Loans,
to the extent allocable to principal) and the principal portion
of Payaheads
previously received and intended for application in the related
Due Period, (2)
all Principal Prepayments on the Mortgage Loans received during
the related
Prepayment Period, (3) the outstanding principal balance of each
Mortgage Loan
that was repurchased by the Seller, the Optional Termination
Holder or the
Majority in Interest Class X-2 Certificateholder during the
calendar month
immediately preceding such Distribution Date, (4) the portion of
any
Substitution Adjustment Amount paid with respect to any Deleted
Mortgage Loans
during the calendar month immediately preceding such
Distribution Date allocable
to principal, (5) all Liquidation Proceeds, and any Insurance
Proceeds and other
recoveries (net of unreimbursed Advances, Servicing Advances and
other expenses,
to the extent allocable to principal) and Net Recoveries
collected with respect
to the Mortgage Loans during the prior calendar month, to the
extent allocable
to principal and (6) with respect to the Distribution Date in
June 2005, the
amount remaining in the Pre-Funding Account at the end of the
Pre-Funding
Period.
Principal Prepayment: Any payment of principal on a Mortgage
Loan which constitutes a Payoff or Curtailment.
Prospectus Supplement: The Prospectus Supplement dated March
29, 2005 relating to the Offered Certificates.
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<PAGE>
PUD: Planned Unit Development.
Qualified Insurer: A mortgage guaranty insurance company
duly
qualified as such under the laws of the state of its principal
place of business
and each state having jurisdiction over such insurer in
connection with the
insurance policy issued by such insurer, duly authorized and
licensed in such
states to transact a mortgage guaranty insurance business in
such states and to
write the insurance provided by the insurance policy issued by
it, approved as a
Fannie Mae- or Freddie Mac-approved mortgage insurer or having a
claims paying
ability rating of at least "AA" or equivalent rating by at least
two nationally
recognized statistical rating organizations. Any replacement
insurer with
respect to a Mortgage Loan must have at least as high a claims
paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute 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 of Exhibit M (i) have a Stated Principal Balance, after
deduction of the
principal portion of the Scheduled Payment due in the month of
substitution (or,
in the case of a substitution of more than one mortgage loan for
a Deleted
Mortgage Loan, an aggregate principal balance), not in excess
of, and not more
than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan;
(ii) be accruing interest at a rate no lower than and not more
than 1% per annum
higher than, that of the Deleted Mortgage Loan; (iii) have a
Combined
Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (iv) have
a remaining term to maturity no greater than (and not more than
one year less
than that of) the Deleted Mortgage Loan; and (v) comply with
each representation
and warranty set forth in Section 2.03(f).
Rating Agency: Fitch and Moody's. If either such
organization
or a successor is no longer in existence, "Rating Agency" shall
be such
nationally recognized statistical rating organization, or other
comparable
Person, as is designated by the Depositor, notice of which
designation shall be
given to the Trustee and the Servicers. References herein to a
given rating or
rating category of a Rating Agency shall mean such rating
category without
giving effect to any modifiers.
Ratings: As of any date of determination, the ratings, if
any,
of the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to each Liquidated Mortgage
Loan,
an amount (not less than zero or greater 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 related Due
Date as to which interest was last paid or advanced (and not
reimbursed) to the
related Certificateholders up to the related 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
Liquidation Proceeds, 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.
Any Charged Off
Loan will
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give rise to a Realized Loss (calculated as if clause (iii) of
the previous
sentence is equal to zero) at the time it is charged off, as
described in
Section 3.11(a)(iii) hereof.
If a Servicer receives Net Recoveries with respect to any
Charged Off Loan, the amount of the Realized Loss with respect
to that Charged
Off Loan will be reduced to the extent such recoveries are
applied to principal
distributions on any Distribution Date.
Record Date: With respect to the Certificates (other than
the
LIBOR Certificates which are Book-Entry Certificates) and any
Distribution Date,
the close of business on the last Business Day of the month
preceding the month
in which such applicable Distribution Date occurs. With respect
to the LIBOR
Certificates which are Book-Entry Certificates and any
Distribution Date, the
close of business on the Business Day preceding such
Distribution Date.
Reference Bank Rate: With respect to any Interest Accrual
Period, as follows: the arithmetic mean (rounded upwards, if
necessary, to the
nearest one sixteenth of a percent) of the offered rates for
United States
dollar deposits for one month which are offered by the Reference
Banks as of
11:00 A.M., London, England time, on the second LIBOR Business
Day prior to the
first day of such Interest Accrual Period to prime banks in the
London interbank
market for a period of one month in amounts approximately equal
to the aggregate
Class Principal Balance of the LIBOR Certificates; provided that
at least two
such Reference Banks provide such rate. If fewer than two
offered rates appear,
the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one
or more major banks in New York City, selected by the Trustee,
as of 11:00 a.m.,
New York time, on such date for loans in U.S. Dollars to leading
European Banks
for a period of one month in amounts approximately equal to the
aggregate Class
Principal Balance of the LIBOR Certificates. If no such
quotations can be
obtained, the Reference Bank Rate shall be LIBOR applicable to
the preceding
Distribution Date; provided however, that if, under the
priorities indicated
above, LIBOR for a Distribution Date would be based on LIBOR for
the previous
Payment Date for the third consecutive Distribution Date, the
Trustee shall
select an alternative comparable index over which the Trustee
has no control,
used for determining one-month Eurodollar lending rates that is
calculated and
published or otherwise made available by an independent
party.
Reference Banks: Barclays Bank PLC, National Westminster
Bank
and Abbey National PLC.
Regular Certificates: As specified in the Preliminary
Statement.
Released Loan: Any Charged Off Loan that is released by
Wilshire to the Class X-2 Certificateholders pursuant to Section
3.11(a),
generally on the date that is six months after the date on which
Wilshire begins
using Wilshire Special Servicing on such Charged Off Loans. Any
Released Loan
will no longer be an asset of any REMIC or the Trust Fund.
Relief Act: The Servicemembers Civil Relief Act or any
similar
state law or regulation.
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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 or principal collectible thereon (attributable to any
previous month)
as a result of the application of the Relief Act or similar
state law or
regulation, the amount, if any, by which (i) interest and/or
principal
collectible on such Mortgage Loan for the most recently ended
calendar month is
less than (ii) interest and/or principal accrued thereon for
such month pursuant
to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within
the
meaning of section 860D of the Code.
REMIC 1: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to which a REMIC election is to be made consisting
of: (i) such
Mortgage Loans as from time to time are subject to this
Agreement (other than
any Prepayment Charges), together with the Mortgage Files
relating thereto, and
together with all collections thereon and proceeds thereof, (ii)
any REO
Property, together with all collections thereon and proceeds
thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all
insurance
policies, including any Primary Insurance Policy, required to be
maintained
pursuant to this Agreement and any proceeds thereof and (iv) the
Collection
Account and the Certificate Account (subject to the last
sentence of this
definition) and such assets that are deposited therein from time
to time and any
investments thereof. Notwithstanding the foregoing, however, a
REMIC election
will not be made with respect to the Pre-Funding Account.
REMIC 1 Regular Interest LTI-1: One of the separate
non-certificated beneficial ownership interests in REMIC 1
issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular
Interest LTI-1
shall accrue interest at the related Uncertificated REMIC 1
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 1 Regular Interest LTI-PF: One of the separate
non-certificated beneficial ownership interests in REMIC 1
issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular
Interest LTI-PF
shall accrue interest at the related Uncertificated REMIC 1
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 1 Regular Interest LTI-P: One of the separate
non-certificated beneficial ownership interests in REMIC 1
issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular
Interest LTI-P
shall accrue interest at the related Uncertificated REMIC 1
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
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<PAGE>
REMIC 1 Regular Interest LTI-R: One of the separate
non-certificated beneficial ownership interests in REMIC 1
issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular
Interest LTI-R
shall accrue interest at the related Uncertificated REMIC 1
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 1 Regular Interest LTI-S: One of the separate
non-certificated beneficial ownership interests in REMIC 1
issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular
Interest LTI-S
shall accrue interest at the related Uncertificated REMIC 1
Pass-Through Rate in
effect from time to time, and shall not be entitled to
distributions of
principal.
REMIC 1 Regular Interests: REMIC 1 Regular Interest LTI-1,
LTI-PF, LTI-P, LTI-S and LTI-R.
REMIC 2: The segregated pool of assets consisting of all of
the REMIC 1 Regular Interests conveyed in the trust to the
Trustee, for the
benefit of the Holders of the REMIC 2 Regular Interests and the
Class A-R
Certificates (in respect of the Class R-2 Interest), pursuant to
Article II
hereunder, and all amounts deposited therein, with respect to
which a separate
REMIC election is to be made.
REMIC 2 Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the
aggregate
Stated Principal Balance of the Mortgage Loans and related REO
Properties then
outstanding and (ii) the Uncertificated REMIC 2 Pass-Through
Rate for REMIC 2
Regular Interest MT-AA minus the Marker Rate, divided by (b)
12.
REMIC 2 Net WAC Rate: With respect to any Distribution Date,
a
per annum rate equal to the weighted average of the
Uncertificated REMIC 1
Pass-Through Rates on the REMIC 1 Regular Interest LTI-1 and
REMIC 1 Regular
Interest LTI-1PF, weighted on the basis of such respective
Uncertificated
Principal Balances thereof immediately preceding such
Distribution Date.
REMIC 2 Overcollateralization Amount: With respect to any
date
of determination, (i) 1% of the aggregate Uncertificated
Principal Balances of
the REMIC 2 Regular Interests minus (ii) the aggregate
Uncertificated Principal
Balances of REMIC 2 Regular Interests MTI-A-1, MTI-A-2, MTI-A-3,
MTI-M-1,
MTI-M-2, MTI-M-3, MTI-M-4, MTI-M-5, MTI-M-6, MTI-M-7, MTI-M-8,
MTI-M-9, MTI-B-1,
MTI-B-2, MTI-R and MTI-P, in each case as of such date of
determination.
REMIC 2 Principal Loss Allocation Amount: With respect to
any
Distribution Date, an amount equal to the product of (i) the
aggregate Stated
Principal Balance of the Mortgage Loans and related REO
Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which
is two times the
aggregate Uncertificated Principal Balance of REMIC 2
33
<PAGE>
Regular Interests MTI-A-1, MTI-A-2, MTI-A-3, MTI-M-1, MTI-M-2,
MTI-M-3, MTI-M-4,
MTI-M-5, MTI-M-6, MTI-M-7, MTI-M-8, MTI-M-9, MTI-B-1 and MTI-B-2
and the
denominator of which is the aggregate Uncertificated Principal
Balance of REMIC
2 Regular Interests MTI-A-1, MTI-A-2, MTI-A-3, MTI-M-1, MTI-M-2,
MTI-M-3,
MTI-M-4, MTI-M-5, MTI-M-6, MTI-M-7, MTI-M-8, MTI-M-9, MTI-B-1,
MTI-B-2 and
MTI-ZZ.
REMIC 2 Regular Interest MTI-AA: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-AA
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-A-1: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-A-1
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-A-2: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-A-2
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-A-3: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-A-3
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-1: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-1
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
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<PAGE>
REMIC 2 Regular Interest MTI-M-2: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-2
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-3: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-3
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-4: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-4
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-5: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-5
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-6: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-6
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-7: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-7
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount
35
<PAGE>
equal to its initial Uncertificated Principal Balance as set
forth in the
Preliminary Statement hereto.
REMIC 2 Regular Interest MTI-M-8: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-8
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-M-9: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-M-9
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-B-1: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-B-1
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-B-2: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-B-2
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-P: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-P
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-R: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-R
shall accrue interest at the related Uncertificated
36
<PAGE>
REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC 2 Regular Interest MTI-S: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-S
shall accrue interest as set forth in the Preliminary Statement
hereto. REMIC 2
Regular Interest MTI-S shall not be entitled to distributions of
principal.
REMIC 2 Regular Interest MTI-ZZ: One of the separate
non-certificated beneficial ownership interests in REMIC 2
issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest MTI-ZZ
shall accrue interest at the related Uncertificated REMIC 2
Pass-Through Rate in
effect from time to time, and shall be entitled to distributions
of principal,
subject to the terms and conditions hereof, in an aggregate
amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC 2 Regular Interest MTI-ZZ Maximum Interest Deferral
Amount: With respect to any Distribution Date, the excess of (i)
REMIC 2
Uncertificated Accrued Interest calculated with the
Uncertificated Pass-Through
Rate for REMIC 2 Regular Interest MTI-ZZ and an Uncertificated
Principal Balance
equal to the excess of (x) the Uncertificated Principal Balance
of REMIC 2
Regular Interest MTI-ZZ over (y) the REMIC 2
Overcollateralization Amount, in
each case for such Distribution Date, over (ii) the sum of REMIC
2
Uncertificated Accrued Interest on REMIC 2 Regular Interests
MTI-A-1, MTI-A-2,
MTI-A-3, MTI-M-1, MTI-M-2, MTI-M-3, MTI-M-4, MTI-M-5, MTI-M-6,
MTI-M-7, MTI-M-8,
MTI-M-9, MTI-B-1 and MTI-B-2, with the rates on the REMIC 2
Regular Interests
MTI-A-1, MTI-A-2, MTI-A-3, MTI-M-1, MTI-M-2, MTI-M-3, MTI-M-4,
MTI-M-5, MTI-M-6,
MTI-M-7, MTI-M-8, MTI-M-9 subject to a cap, for the purpose of
this calculation,
equal to the lesser of (A) LIBOR plus the Certificate Margin for
the
Corresponding Certificate and (B) the REMIC 2 Net WAC Rate, with
the rate on the
REMIC 2 Regular Interest MTI-B-1 subject to a cap, for purposes
of this
calculation, equal to the lesser of (A) 7.00% per annum on or
prior to the
Optional Termination Date and 7.50% per annum after the Optional
Termination
Date and (B) the REMIC 2 Net WAC Rate, with the rate on the
REMIC 2 Regular
Interest MTI-B-2 subject to a cap, for purposes of this
calculation, equal to
the lesser of (A) 7.00% per annum on or prior to the Optional
Termination Date
and 7.50% per annum after the Optional Termination Date and (B)
the REMIC 2 Net
WAC Rate and with the rate on the REMIC 2 Regular Interest
MTI-ZZ subject to a
cap, for the purpose of this calculation, equal to zero.
REMIC 2 Regular Interests: REMIC 2 Regular Interest MTI-AA,
REMIC 2 Regular Interest MTI-A-1, REMIC 2 Regular Interest
MTI-A-2, REMIC 2
Regular Interest MTI-A-3, REMIC 2 Regular Interest MTI-M-1,
REMIC 2 Regular
Interest MTI-M-2, REMIC 2 Regular Interest MTI-M-3, REMIC 2
Regular Interest
MTI-M-4, REMIC 2 Regular Interest MTI-M-5, REMIC 2 Regular
Interest MTI-M-6,
REMIC 2 Regular Interest MTI-M-7, REMIC 2 Regular Interest
MTI-M-8, REMIC 2
Regular Interest MTI-M-9, REMIC 2 Regular Interest
37
<PAGE>
MTI-B-1, REMIC 2 Regular Interest MTI-B-2, REMIC 2 Regular
Interest MTI-S, REMIC
2 Regular Interest MTI-ZZ, REMIC 2 Regular Interest MTI-P and
REMIC 2 Regular
Interest MTI-R.
REMIC 2 Targeted Overcollateralization Amount: 1% of the
Targeted Overcollateralization Amount.
REMIC 3: The segregated pool of assets consisting of all of
the REMIC 2 Regular Interests conveyed in the trust to the
Trustee, for the
benefit of the Holders of the Regular Certificates and the Class
A-R
Certificates (in respect of the Class R-3 Interest), and all
amounts deposited
therein, with respect to which a separate REMIC election is to
be made.
REMIC 3 Regular Interests: The Regular Certificates.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which
appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and regulations promulgated thereunder, as the
foregoing may be in
effect from time to time.
REMIC Regular Interests: The REMIC 1 Regular Interests and
REMIC 2 Regular Interests.
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 and, for the avoidance of doubt,
following the
satisfaction of any related First Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan required
to be purchased by the Seller pursuant to this Agreement or
purchased at the
option of the Majority in Interest Holder of the Class X-2
Certificates pursuant
to this 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 unpaid interest thereon at the applicable Mortgage Rate
from the date
through which interest was last paid by the Mortgagor to the Due
Date in the
month in which the Repurchase Price is to be distributed to
Certificateholders,
(iii) any unreimbursed Servicing Advances and (iv) any costs and
damages
actually incurred and paid by or on behalf of the Trust
(including, but not
limited to late fees) in connection with any breach of the
representation and
warranty set forth in clause (xx) of Schedule IV hereto as the
result of a
violation of a predatory or abusive lending law applicable to
such Mortgage
Loan.
Request for Release: The Request for Release submitted by a
Servicer to the Trustee, substantially in the form of Exhibit
M.
Required Insurance Policy: With respect to any Mortgage
Loan,
any insurance policy that is required to be maintained from time
to time under
this Agreement.
Residual Certificates: As specified in the Preliminary
Statement.
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<PAGE>
Responsible Officer: When used with respect to the Trustee,
any Vice President, any Assistant Vice President, any Assistant
Secretary, any
Trust Officer or any other officer of the Trustee customarily
performing
functions similar to those performed by any of the above
designated officers and
also to whom, with respect to a particular matter, such matter
is referred
because of such officer's knowledge of and familiarity with the
particular
subject and who shall have direct responsibility for the
administration of this
Agreement.
Rolling Three Month Delinquency Rate: For any Distribution
Date will be the fraction, expressed as a percentage, equal to
the average of
the Delinquency Rates for each of the three (or one and two, in
the case of the
first and second Distribution Dates, respectively) immediately
preceding months.
SAIF: The Savings Association Insurance Fund, or any
successor
thereto.
S&P: Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc. For purposes of Section 10.05(b) the address for
notices to S&P
shall be Standard & Poor's, 55 Water Street, New York, New
York 10004,
Attention: Mortgage Surveillance Monitoring, or such other
address as S&P may
hereafter furnish to the Depositor, the Servicers and the
Trustee.
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 pursuant to the terms of the related Mortgage Note, as
reduced by any
Relief Act Reductions.
Second Mortgage Loan: A Mortgage Loan that is secured by a
second lien on the Mortgaged Property securing the related
Mortgage Note.
Securities Act: The Securities Act of 1933, as amended.
Seller: DLJ Mortgage Capital, Inc.
Senior Certificates: As specified in the Preliminary
Statement.
Senior Enhancement Percentage: For any Distribution Date,
the
fraction, expressed as a percentage, the numerator of which is
the sum of the
aggregate Class Principal Balance of the Class M-1, Class M-2,
Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class B-1 and Class
B-2 Certificates and the Overcollateralization Amount (which,
for purposes of
this definition only, shall not be less than zero), in each case
after giving
effect to payments on such Distribution Date (assuming no
Trigger Event is in
effect), and the denominator of which is the Aggregate
Collateral Balance for
such Distribution Date.
Senior Principal Payment Amount: For any Distribution Date
on
or after the Stepdown Date and as long as a Trigger Event is not
in effect with
respect to such Distribution Date, will be the amount, if any,
by which (x) the
aggregate Class Principal Balance of the Class A-1, Class A-2,
Class A-3, Class
P, Class A-R and Class A-RL Certificates immediately prior to
such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 36.80% and
(ii) the
39
<PAGE>
Aggregate Collateral Balance for such Distribution Date and (B)
the amount, if
any, by which (i) the Aggregate Collateral Balance for such
Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the
Cut-off Date.
Servicer: Wilshire and IndyMac, or their successors in
interest, or any successor servicer appointed as provided
herein.
Servicer Employee: As defined in Section 3.18.
Servicer Cash Remittance Date: With respect to each
Distribution Date, the Business Day immediately preceding such
Distribution
Date.
Servicer Data Remittance Date: With respect to each
Distribution Date, the second Business Day immediately following
the 15th day of
the month of such Distribution Date.
Servicing Advance: All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in the performance
by a Servicer of
its servicing obligations, including, but not limited to, the
cost (including
reasonable attorneys' fees and disbursements) of (i) the
inspection,
preservation, restoration and protection of a Mortgaged
Property, (ii) any
expenses reimbursable to such Servicer pursuant to Section 3.11
and any
enforcement or judicial proceedings, including foreclosures, and
including any
expenses incurred in relation to any such proceedings that
result from the
Mortgage Loan being registered on the MERS System; (iii) the
management and
liquidation of any REO Property (including default management
and similar
services, appraisal services and real estate broker services);
(iv) any expenses
incurred by such Servicer in connection with obtaining an
environmental
inspection or review pursuant to Section 3.11(a)(v) and (vi);
(v) compliance
with the obligations under Section 3.01, 3.09 and 3.11(b); (vi)
the cost of
obtaining any broker's price opinion in accordance with Section
3.11 hereof;
(vii) the costs of obtaining an Opinion of Counsel pursuant to
Section 3.11(c)
hereof; (viii) expenses incurred in connection with any
instrument of
satisfaction or deed of reconveyance as described in Section
3.12 hereof; and
(ix) expenses incurred in connection with the recordation of
Assignments of
Mortgage.
Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Servicing
Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month
of such Distribution Date (prior to giving effect to any
Scheduled Payments due
on such Mortgage Loan on such Due Date), subject to reduction as
provided in
Section 3.05(b)(vi).
Servicing Fee Rate: With respect to each Wilshire Serviced
Loan, the "Wilshire Servicing Fee Rate" as defined in the
Wilshire Letter
Agreement, which rate may increase up to 0.50% per annum. With
respect to each
IndyMac Serviced Loan, 0.50% per annum. In the event of the
appointment of a
successor servicer pursuant to Section 6.04 hereof, the
Servicing Fee Rate as to
each Wilshire Serviced Loan may increase to up to 0.50% per
annum.
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Servicing Officer: With respect to each Servicer, any
representative of that Servicer involved in, or responsible for,
the
administration and servicing of the related Mortgage Loans whose
name and
specimen signature appear on a list of servicing officers
furnished to the
Trustee by such Servicer on the Closing Date pursuant to this
Agreement, as such
list may from time to time be amended.
Significant Net Recoveries: With respect to a defaulted
Mortgage Loan, a determination by a Servicer that either (A) the
potential Net
Recoveries are anticipated to be greater than or equal to the
sum of (i) the
total indebtedness of the senior lien on the related Mortgaged
Property and (ii)
$10,000 (after anticipated expenses and attorneys' fees) or (B)
the related
Mortgagor has shown a willingness and ability to pay over the
previous six
months.
Simple Interest Excess: As of any Determination Date for
each
Simple Interest Qualifying Loan, the excess, if any, of (i) the
portion of the
monthly payment received from the Mortgagor for such Mortgage
Loan allocable to
interest with respect to the related Due Period, over (ii) 30
days' interest on
the Stated Principal Balance of such Mortgage Loan at the
Mortgage Rate.
Simple Interest Excess Sub-Account: The sub-account of the
Collection Account established by a Servicer pursuant to Section
3.06(d). The
Simple Interest Excess Sub-Account shall be an Eligible
Account.
Simple Interest Mortgage Loan: Any Mortgage Loan for which
the
interest due thereon is calculated based on the actual number of
days elapsed
between the date on which interest was last paid through the
date on which the
most current payment is received.
Simple Interest Qualifying Loan: As of any Determination
Date,
any Simple Interest Mortgage Loan that was neither prepaid in
full during the
related Due Period, nor delinquent with respect to a payment
that became due
during the related Due Period as of the close of business on the
Determination
Date following such Due Period.
Simple Interest Shortfall: As of any Determination Date for
each Simple Interest Qualifying Loan, the excess, if any, of (i)
30 days'
interest on the Stated Principal Balance of all such Mortgage
Loans at the
Mortgage Rate, over (ii) the portion of the monthly payment
received from the
Mortgagor for such Mortgage Loan allocable to interest with
respect to the
related Due Period.
Startup Day: March 30, 2005.
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
Curtailments and
Liquidation Proceeds allocable to principal (other than with
respect to any
Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date
and
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irrespective of any delinquency in payment by the related
Mortgagor; provided,
however, for purposes of calculating the Servicing Fee and the
Trustee Fee, the
Stated Principal Balance of any REO will be the unpaid principal
balance
immediately prior to foreclosure.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in April 2008 and (y) the first Distribution
Date on which the
Senior Enhancement Percentage (calculated for this purpose after
giving effect
to payments or other recoveries in respect of the Mortgage Loans
during the
related Due Period but before giving effect to payments on the
Certificates on
such Distribution Date) is greater than or equal to 63.20%.
Subordinate Certificates: As specified in the Preliminary
Statement.
Subsequent Mortgage Loan: Any Mortgage Loan other than an
Initial Mortgage Loan conveyed to the Trust Fund pursuant to
Section 2.01 hereof
and to a Subsequent Transfer Agreement, which Mortgage Loan
shall be listed on
the revised Mortgage Loan Schedule delivered pursuant to this
Agreement and on
Schedule A to such Subsequent Transfer Agreement. When used with
respect to a
single Subsequent Transfer Date, Subsequent Mortgage Loan shall
mean a
Subsequent Mortgage Loan conveyed to the Trust on that
Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer
Agreement
substantially in the form of Exhibit N hereto, executed and
delivered by the
related Servicer, the Depositor, the Seller and the Trustee as
provided in
Section 2.01 hereof.
Subsequent Transfer Date: For any Subsequent Transfer
Agreement, the date the related Subsequent Mortgage Loans are
transferred to the
Trust Fund pursuant to the related Subsequent Transfer
Agreement.
Subservicer: Any Subservicer which is subservicing the
Mortgage Loans pursuant to a Subservicing Agreement. Any
subservicer shall meet
the qualifications set forth in Section 3.02.
Subservicing Agreement: An agreement between a Servicer and
a
Subservicer for the servicing of the related Mortgage Loans.
Substitution Adjustment Amount: As defined in Section 2.03.
Targeted Overcollateralization Amount: For any Distribution
Date prior to the Stepdown Date, 5.10% of the Aggregate
Collateral Balance as of
the Cut-off Date; with respect to any Distribution Date on or
after the Stepdown
Date and with respect to which a Trigger Event is not in effect,
the greater of
(a) 10.20% of the Aggregate Collateral Balance for such
Distribution Date, or
(b) 0.50% of the Aggregate Collateral Balance as of the Cut-off
Date; with
respect to any Distribution Date on or after the Stepdown Date
with respect to
which a Trigger Event is in effect and is continuing, the
Targeted
Overcollateralization Amount for the Distribution Date
immediately preceding
such Distribution Date. Notwithstanding the foregoing, on and
after any
Distribution Date following the reduction of the aggregate Class
Principal
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Balance of the Class A, Class M and Class B Certificates to
zero, the Targeted
Overcollateralization Amount shall be zero. Upon (x) written
direction by the
Majority in Interest Holder of the Class X-1 Certificates and
(y) the issuance
by an affiliate of the Depositor of a credit enhancement
contract in favor of
REMIC 1 which is satisfactory to the Rating Agencies and (z)
receipt by the
Trustee of an Opinion of Counsel, which opinion shall not be an
expense of the
Trustee or the Trust Fund, but shall be at the expense of the
Majority in
Interest Holder of the Class X-1 Certificates, to the effect
that such credit
enhancement contract will not cause the imposition of any
federal tax on the
Trust Fund or the Certificateholders or cause REMIC 1, REMIC 2
and REMIC 3 to
fail to qualify as a REMIC at any time that any Certificates are
outstanding,
the Targeted Overcollateralization Amount shall be reduced to
the level approved
by the Rating Agencies as a result of such credit enhancement
contract. Any
credit enhancement contract referred to in the previous sentence
shall be
collateralized by cash or mortgage loans, provided that (i) the
aggregate Stated
Principal Balance of the mortgage loans collateralizing any such
credit
enhancement contract shall not be less than the excess, if any,
of (x) the
initial Targeted Overcollateralization Amount over (y) the
then-current
Overcollateralization Amount and (ii) the issuance of any credit
enhancement
contract supported by mortgage loans shall not result in a
downgrading of the
ratings assigned by the Rating Agencies.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation ss.
1.860F-4(d) and
temporary Treasury regulation ss. 301.6231(a)(7)-1T.
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Trigger Event: A Trigger Event will be in effect for any
Distribution Date on or after the Stepdown Date if (a) the
Rolling Three Month
Delinquency Rate as of the last day of the related Due Period
equals or exceeds
16.00% of the Senior Enhancement Percentage for such
Distribution Date or (ii) a
Cumulative Loss Event is occurring. The Trigger Event may be
amended by the
parties hereto in the future with the consent of the Rating
Agencies.
Trust Collateral: As defined in Section 9.01(c).
Trust Fund: Collectively, the assets of REMIC 1, REMIC 2,
REMIC 3, the Pre-Funding Account.
Trustee: JPMorgan Chase Bank, N.A. and its successors and,
if
a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Trustee Fee
Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month
of such Distribution Date (prior to giving effect to any
Scheduled Payments due
on such Mortgage Loan on such Due Date).
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<PAGE>
Trustee Fee Rate: With respect to any Distribution Date,
0.005% per annum.
Uncertificated Accrued Interest: With respect to each REMIC
Regular Interest on each Distribution Date, an amount equal to
one month's
interest at the related Uncertificated Pass-Through Rate on the
Uncertificated
Principal Balance of such REMIC Regular Interest. In each case,
Uncertificated
Accrued Interest will be reduced by any Net Prepayment Interest
Shortfalls and
Relief Act Reductions (allocated to such REMIC Regular Interests
based on the
priorities set forth in Section 1.03).
Uncertificated Notional Amount: With respect to REMIC 1
Regular Interest LTI-S, the Uncertificated Notional Amount shall
be equal to the
principal balance of the Mortgage Loans; and with respect to
REMIC 2 Regular
Interest MTI-S, the Uncertificated Notional Amount shall be
equal to the
Uncertificated Notional Amount of REMIC 1 Regular Interest
LTI-S.
Uncertificated Pass-Through Rate: The Uncertificated REMIC 1
Pass-Through Rate and the Uncertificated REMIC 2 Pass-Through
Rate.
Uncertificated Principal Balance: With respect to each REMIC
Regular Interest, the amount of such REMIC Regular Interest
outstanding as of
any date of determination. As of the Closing Date, the
Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount
set forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of
each REMIC
Regular Interest shall be reduced by all distributions of
principal made on such
REMIC Regular Interest on such Distribution Date pursuant to
Section 4.07 and,
if and to the extent necessary and appropriate, shall be further
reduced on such
Distribution Date by Realized Losses as provided in Section
4.05(b), and the
Uncertificated Principal Balance of REMIC 2 Regular Interest
MTI-ZZ shall be
increased by interest deferrals as provided in Section 4.07. The
Uncertificated
Principal Balance of each REMIC Regular Interest that has an
Uncertificated
Principal Balance shall never be less than zero.
Uncertificated REMIC 1 Pass-Through Rate: With respect to
each
REMIC 1 Regular Interest (other than REMIC 1 Regular Interests
LTI-1PF and
LTI-S) and the Interest Accrual Periods in April 2005, May 2005
and June 2005, a
per annum rate equal to the Initial Mortgage Loan Net WAC Rate;
with respect to
REMIC 1 Regular Interest LTI-1PF and the Interest Accrual
Periods in April 2005,
May 2005 and June 2005, a per annum rate equal to 0.00%, and
with respect to
each REMIC 1 Regular Interest (other than REMIC 1 Regular
Interest LTI-S) and
each Interest Accrual Period thereafter, the weighted average of
the Net
Mortgage Rates on the Mortgage Loans. With respect to REMIC 1
Regular Interest
LTI-S, a per annum rate, determined on a Mortgage Loan by
Mortgage Loan basis,
equal to the excess of (i) the excess of (a) the Mortgage Rate
for each Wilshire
Serviced Loan over (b) the sum of the Servicing Fee Rate, the
Credit Risk
Manager Fee Rate and the Trustee Fee Rate, over (ii) the Net
Mortgage Rate of
each such Wilshire Serviced Loan.
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Uncertificated REMIC 2 Pass-Through Rate: For any
Distribution
Date, with respect to REMIC 2 Regular Interest MTI-AA, REMIC 2
Regular Interest
MTI-A-1, REMIC 2 Regular Interest MTI-A-2, REMIC 2 Regular
Interest MTI-A-3,
REMIC 2 Regular Interest MTI-M-1, REMIC 2 Regular Interest
MTI-M-2, REMIC 2
Regular Interest MTI-M-3, REMIC 2 Regular Interest MTI-M-4,
REMIC 2 Regular
Interest MTI-M-5, REMIC 2 Regular Interest MTI-M-6, REMIC 2
Regular Interest
MTI-M-7, REMIC 2 Regular Interest MTI-M-8, REMIC 2 Regular
Interest MTI-M-9,
REMIC 2 Regular Interest MTI-B-1, REMIC 2 Regular Interest
MTI-B-2 and REMIC 2
Regular Interest MTI-ZZ, the REMIC 2 Net WAC Rate, and for any
Distribution Date
with respect to REMIC 2 Regular Interest MT-P and REMIC 2
Regular Interest MT-R,
in April 2005, May 2005 and June 2005, the Initial Mortgage Loan
Net WAC, and
for any Distribution Date thereafter, the REMIC 2 Net WAC
Rate.
Uncertificated Principal Balance: With respect to each REMIC
Regular Interest, the amount of such REMIC Regular Interest
outstanding as of
any date of determination. As of the Closing Date, the
Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount
set forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of
each REMIC
Regular Interest shall be reduced by all distributions of
principal made on such
REMIC Regular Interest on such Distribution Date pursuant to
Section 4.07 and,
if and to the extent necessary and appropriate, shall be further
reduced on such
Distribution Date by Realized Losses as provided in Section
4.05(b), and the
Uncertificated Principal Balances of REMIC 1 Regular Interest
LTI-PF shall be
increased, pro rata, by interest deferrals as provided in
Section 4.07. The
Uncertificated Principal Balance of each REMIC Regular Interest
that has an
Uncertificated Principal Balance shall never be less than zero.
REMIC 1 Regular
Interest LTI-S and REMIC 2 Regular Interest MTI-S shall not have
an
Uncertificated Principal Balance.
United States Person: A citizen or resident of the United
States, a corporation or a partnership (including an entity
treated as a
corporation or partnership for United States federal income tax
purposes)
created or organized in, or under the laws of, the United States
or any State
thereof or the District of Columbia (except, in the case of a
partnership, to
the extent provided in regulations) provided that, for purposes
solely of the
restrictions on the transfer of Class A-R Certificates and Class
A-RL
Certificates, no partnership or other entity treated as a
partnership for United
States federal income tax purposes shall be treated as a United
States Person
unless all persons that own an interest in such partnership
either directly or
through any entity that is not a corporation for United States
federal income
tax purposes are required to be United States Persons or an
estate whose income
is subject to United States federal income tax regardless of its
source, or a
trust if a court within the United States is able to exercise
primary
supervision over the administration of the trust and one or more
such United
States Persons have the authority to control all substantial
decisions of the
trust. To the extent prescribed in regulations by the Secretary
of the Treasury,
which have not yet been issued, a trust which was in existence
on August 20,
1996 (other than a trust treated as owned by the grantor under
subpart E of part
I of subchapter J of chapter 1 of the Code), and which was
treated as a United
States person on August 20, 1996 may elect to continue to be
treated as a United
States Person notwithstanding the previous sentence.
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<PAGE>
Voting Rights: 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,
97% of all Voting Rights shall be allocated among the Class A-1,
Class A-2,
Class A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6,
Class M-7, Class M-8, Class M-9, Class B-1 and Class B-2
Certificates. The
portion of such 97% Voting Rights allocated to the Class A-1,
Class A-2, Class
A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class
M-7, Class M-8, Class M-9, Class B-1 and Class B-2 Certificates
shall be based
on the fraction, expressed as a percentage, the numerator of
which is the
aggregate Class Principal Balance then outstanding and the
denominator of which
is the Class Principal Balance of all such Classes then
outstanding. The Class
P, Class X-1 and Class X-S Certificates shall each be allocated
1% of the Voting
Rights. Voting Rights shall be allocated among the Certificates
within each such
Class (other than the Class P, Class X-1 and Class X-S
Certificates, which each
have only one certificate) in accordance with their respective
Percentage
Interests. The Class X-2, Class A-R and Class A-RL Certificates
shall have no
Voting Rights.
Wilshire: Wilshire Credit Corporation.
Wilshire Letter Agreement: The securitization servicing side
letter agreement, dated as of March 1, 2005, between the Seller
and Wilshire, as
amended, supplemented or superceded from time to time.
Wilshire Serviced Loans: The Mortgage Loans identified as
such
on the Mortgage Loan Schedule.
Wilshire Special Servicing: With regard to any Charged Off
Loans, the servicing of such Charged Off Loans using specialized
collection
procedures (including foreclosure, if appropriate) to maximize
recoveries.
SECTION 1.02 Interest Calculations.
The calculation of the Trustee Fee, the Servicing Fee, the
Credit Risk Manager Fee and interest on the Class B-1, Class
B-2, Class P, Class
A-R, Class A-RL, Class X-1 and Class X-S Certificates and on the
related
Uncertificated Interests shall be made on the basis of a 360-day
year consisting
of twelve 30-day months. The calculation of interest on the
Class A-1, Class
A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class
M-6, Class M-7, Class M-8 and Class M-9 Certificates and the
related
Uncertificated Interests shall be made on the basis of a 360-day
year and the
actual number of days elapsed in the related Interest Accrual
Period. All dollar
amounts calculated hereunder shall be rounded to the nearest
penny with one-half
of one penny being rounded down.
SECTION 1.03 Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 1 Regular Interests for any
Distribution Date,
the aggregate amount of any Prepayment
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<PAGE>
Interest Shortfalls (net of any Compensating Interest Payment)
and any Relief
Act Reductions incurred in respect of the Mortgage Loans for any
Distribution
Date shall be allocated first to REMIC 1 Regular Interests LTI-1
and LTI-PF and
then to REMIC 1 Regular Interests LTI-P and LTI-R, in each case
to the extent of
one month's interest at the then applicable respective
Uncertificated REMIC 1
Pass-Through Rate on the respective Uncertificated Principal
Balance of each
such REMIC 1 Regular Interest; provided, however, that with
respect to the first
three Distribution Dates, such amounts relating to the Initial
Mortgage Loans
shall be allocated to REMIC 1 Regular Interest LTI-1 and such
amounts relating
to the Subsequent Mortgage Loans shall be allocated to REMIC 1
Regular Interest
LT-PF.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 2 Regular Interests for any
Distribution Date,
any Prepayment Interest Shortfalls (to the extent not covered by
Compensating
Interest) relating to the Mortgage Loans for any Distribution
Date shall be
allocated in the same priority, and to the same extent, as that
allocated to the
Corresponding Certificates.
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<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, hereby sells, transfers, assigns, sets over and
otherwise
conveys to the Trustee in trust for the benefit of the
Certificateholders,
without recourse, all (i) the right, title and interest of the
Depositor (which
does not include servicing rights) in and to each Initial
Mortgage Loan,
including all interest and principal received or receivable on
or with respect
to such Initial Mortgage Loans after the Cut-off Date and all
interest and
principal payments on the Initial Mortgage Loans received prior
to the Cut-off
Date in respect of installments of interest and principal due
thereafter, but
not including payments of principal and interest due and payable
on the Initial
Mortgage Loans on or before the Cut-off Date (other than the
rights of the
Servicers to service the Mortgage Loans in accordance with this
Agreement), (ii)
the Depositor's rights under the Assignment Agreement (iii) any
such amounts as
may be deposited into and held by the Trustee in the Pre-Funding
Account and
(iv) all proceeds of any of the foregoing. The parties hereto
agree that it is
not intended that any mortgage loan be conveyed to the Trust
that is either (i)
a "High-Cost Home Loan" as defined in the New Jersey Home
Ownership Act
effective November 27, 2003, (ii) a "High-Cost Home Loan" as
defined in the New
Mexico Home Loan Protection Act effective January 1, 2004 (iii)
a "High Cost
Home Mortgage Loan" as defined in the Massachusetts Predatory
Home Loan
Practices Act effective November 7, 2004 or (iv) a "High-Cost
Home Loan" as
defined by the Indiana High Cost Home Loan Law effective January
1, 2005.
(b) In connection with the transfer and assignment set
forth in clause (a) above, the Depositor has delivered or caused
to be delivered
to the Trustee or its designated agent, the Custodian, for the
benefit of the
Certificateholders, the documents and instruments with respect
to each Mortgage
Loan as assigned:
(i) the original Mortgage Note of the Mortgagor in the
name of the Trustee or endorsed "Pay to the order of
________________
without recourse" and signed in the name of the last named
endorsee by
an authorized officer, together with all intervening
endorsements
showing a complete chain of endorsements from the originator of
the
related Mortgage Loan to the last endorsee or with respect to
any Lost
Mortgage Note (as such term is defined in the Pooling and
Servicing
Agreement), a lost note affidavit stating that the original
Mortgage
Note was lost or destroyed, together with a copy of such
Mortgage Note;
(ii) for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage bearing evidence that such
instruments have
been recorded in the appropriate jurisdiction where the
Mortgaged
Property is located as determined by DLJMC (or, in
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lieu of the original of the Mortgage or the assignment thereof,
a
duplicate or conformed copy of the Mortgage or the instrument
of
assignment, if any, together with a certificate of receipt from
the
Seller or the settlement agent who handled the closing of the
Mortgage
Loan, certifying that such copy or copies represent true and
correct
copy(ies) of the original(s) and that such original(s) have been
or are
currently submitted to be recorded in the appropriate
governmental
recording office of the jurisdiction where the Mortgaged
Property is
located) or a certification or receipt of the recording
authority
evidencing the same and in the case of each MERS Mortgage Loan,
the
original Mortgage, noting the presence of the MIN of the
related
Mortgage Loan and either language indicating that the Mortgage
Loan is
a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and
the
assignment thereof to MERS, with evidence of recording
indicated
thereon or a copy of the Mortgage certified by the public
recording
office in which such Mortgage has been recorded;
(iii) for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Assignment of Mortgage, in blank, which
assignment
appears to be in form and substance acceptable for recording
and, in
the event that the related Seller acquired the Mortgage Loan in
a
merger, the assignment must be by "[Seller], successor by merger
to
[name of predecessor]", and in the event that the Mortgage Loan
was
acquired or originated by the related Seller while doing
business under
another name, the assignment must be by "[Seller], formerly
known as
[previous name]";
(iv) for each Mortgage Loan, at any time that such
Mortgage Loan is not a MERS Mortgage Loan, the originals of
all
intervening Assignments of Mortgage not included in (iii) above
showing
a complete chain of assignment from the originator of such
Mortgage
Loan to the Person assigning the Mortgage to the Trustee,
including any
warehousing assignment, with evidence of recording on each
such
Assignment of Mortgage (or, in lieu of the original of any
such
intervening assignment, a duplicate or conformed copy of
such
intervening assignment together with a certificate of receipt
from the
related Seller or the settlement agent who handled the closing
of the
Mortgage Loan, certifying that such copy or copies represent
true and
correct copy(ies) of the original(s) and that such original(s)
have
been or are currently submitted to be recorded in the
appropriate
governmental recording office of the jurisdiction where the
Mortgaged
Property is located) or a certification or receipt of the
recording
authority evidencing the same;
(v) an original of any related security agreement (if
such item is a document separate from the Mortgage) and the
originals
of any intervening assignments thereof showing a complete chain
of
assignment from the originator of the related Mortgage Loan to
the last
assignee;
(vi) an original assignment of any related security
agreement (if such item is a document separate from the
Mortgage)
executed by the last assignee in blank;
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<PAGE>
(vii) the originals of any assumption, modification,
extension or guaranty agreement with evidence of recording
thereon, if
applicable (or, in lieu of the original of any such agreement,
a
duplicate or conformed copy of such agreement together with
a
certificate of receipt from the related Seller or the settlement
agent
who handled the closing of the Mortgage Loan, certifying that
such
copy(ies) represent true and correct copy(ies) of the
original(s) and
that such original(s) have been or are currently submitted to
be
recorded in the appropriate governmental recording office of
the
jurisdiction where the Mortgaged Property is located), or a
certification or receipt of the recording authority evidencing
the
same;
(viii) if the Mortgage Note or Mortgage or any other
document or instrument relating to the Mortgage Loan has been
signed by
a person on behalf of the Mortgagor, the original power of
attorney or
other instrument that authorized and empowered such person to
sign
bearing evidence that such instrument has been recorded, if
so
required, in the appropriate jurisdiction where the Mortgaged
Property
is located as determined by DLJMC (or, in lieu thereof, a
duplicate or
conformed copy of such instrument, together with a certificate
of
receipt from the related Seller or the settlement agent who
handled the
closing of the Mortgage Loan, certifying that such copy(ies)
represent
true and complete copy(ies)of the original(s) and that such
original(s)
have been or are currently submitted to be recorded in the
appropriate
governmental recording office of the jurisdiction where the
Mortgaged
Property is located) or a certification or receipt of the
recording
authority evidencing the same; and
(ix) in the case of the First Mortgage Loans, the original
mortgage title insurance policy, or if such mortgage title
insurance
policy has not yet been issued, an original or copy of a
marked-up
written commitment or a pro forma title insurance policy marked
as
binding and countersigned by the title insurance company or
its
authorized agent either on its face or by an acknowledged
closing
instruction or escrow letter.
In the event the Seller delivers to the Trustee certified
copies of any document or instrument set forth in 2.01(b)
because of a delay
caused by the public recording office in returning any recorded
document, the
Seller shall deliver to the Trustee, within 60 days of the
Closing Date, an
Officer's Certificate which shall (i) identify the recorded
document, (ii) state
that the recorded document has not been delivered to the Trustee
due solely to a
delay caused by the public recording office, and (iii) state the
amount of time
generally required by the applicable recording office to record
and return a
document submitted for recordation.
In the event that in connection with any Mortgage Loan the
Depositor cannot deliver (a) the original recorded Mortgage, (b)
all interim
recorded assignments or (c) the lender's title policy (together
with all riders
thereto) satisfying the requirements set forth above,
concurrently with the
execution and delivery hereof because such document or documents
have not been
returned from the applicable public recording office in the case
of clause (a)
or (b) above, or because the title policy has not been delivered
to the Seller
or the Depositor by the applicable title insurer in the case of
clause (c)
above, the Depositor shall promptly deliver to the Trustee, in
the case of
clause (a) or (b) above, such original Mortgage or such
interim
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assignment, as the case may be, with evidence of recording
indicated thereon
upon receipt thereof from the public recording office, or a copy
thereof,
certified, if appropriate, by the relevant recording office and
in the case of
clause (c) above, if such lender's title policy is received by
the Depositor,
upon receipt thereof.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days
thereafter, the Trustee
shall (at the Seller's expense) (i) affix the Trustee's name to
each Assignment
of Mortgage, as the assignee thereof, (ii) cause such assignment
to be in proper
form for recording in the appropriate public office for real
property records
within thirty (30) days after receipt thereof and (iii) cause to
be delivered
for recording in the appropriate public office for real property
records the
assignments of the Mortgages to the Trustee, except that, with
respect to any
assignment of a Mortgage as to which the Trustee has not
received the
information required to prepare such assignment in recordable
form, the
Trustee's obligation to do so and to deliver the same for such
recording shall
be as soon as practicable after receipt of such information and
in any event
within thirty (30) days after the receipt thereof, and the
Trustee need not
cause to be recorded (a) any assignment referred to in clause
(iii) above which
relates to a Mortgage Loan in any jurisdiction under the laws of
which, as
evidenced by an Opinion of Counsel delivered to the Trustee (at
the Depositor's
expense, provided such expense has been previously approved by
the Depositor in
writing) within 180 days of the Closing Date, acceptable to the
Rating Agencies,
the recordation of such assignment is not necessary to protect
the Trustee's and
the Certificateholders' interest in the related Mortgage Loan or
(b) if MERS is
identified on the Mortgage or on a properly recorded assignment
of the Mortgage
as the mortgagee of record solely as nominee for the Seller and
its successors
and assigns.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Depositor further agrees
that it will
cause, at the Depositor's own expense, on or prior to the
Closing Date, the
MERS(R) System to indicate that such Mortgage Loans have been
assigned by the
Depositor to the Trustee in accordance with this Agreement for
the benefit of
the Certificateholders by including (or deleting, in the case of
Mortgage Loans
which are repurchased in accordance with this Agreement) in such
computer files
(a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field
"[IDENTIFY THE
FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b)
the code
"[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool
Field" which
identifies the series of the Certificates issued in connection
with such
Mortgage Loans. The Depositor further agrees that it will not,
and will not
permit any Servicer to, and each Servicer agrees that it will
not, alter the
codes referenced in this paragraph with respect to any Mortgage
Loan during the
term of this Agreement unless and until such Mortgage Loan is
repurchased in
accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or
trust company approved by the Depositor as Custodian of the
documents or
instruments referred to in this Section 2.01 for any of the
Mortgage Loans, and
to enter into a Custodial Agreement for such purpose and any
documents delivered
thereunder shall be delivered to the Custodian and any Officer's
Certificates
delivered with respect thereto shall be delivered to the Trustee
and the
Custodian.
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<PAGE>
(d) It is the express intent of the parties to this
Agreement that the conveyance of the Mortgage Loans by the
Depositor to the
Trustee as provided in this Section 2.01 be, and be construed
as, a sale of the
Mortgage Loans by the Depositor to the Trustee. It is, further,
not the
intention of the parties to this Agreement that such conveyance
be deemed a
pledge of the Mortgage Loans by the Depositor to the Trustee to
secure a debt or
other obligation of the Depositor. However, in the event that,
notwithstanding
the intent of the parties to this Agreement, the Mortgage Loans
are held to be
the property of the Depositor, or if for any other reason this
Agreement is held
or deemed to create a security interest in the Mortgage Loans
then (a) this
Agreement shall also be deemed to be a security agreement within
the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code; (b)
the conveyance
provided for in this Section 2.01 shall be deemed to be a grant
by the Depositor
to the Trustee for the benefit of the Certificateholders of a
security interest
in all of the Depositor's right, title and interest in and to
the Mortgage Loans
and all amounts payable to the holders of the Mortgage Loans in
accordance with
the terms thereof and all proceeds of the conversion, voluntary
or involuntary,
of the foregoing into cash, instruments, securities or other
property, including
without limitation all amounts, other than investment earnings,
from time to
time held or invested in the Certificate Account, whether in the
form of cash,
instruments, securities or other property; (c) the possession by
the Trustee or
any Custodian of such items of property and such other items of
property as
constitute instruments, money, negotiable documents or chattel
paper shall be
deemed to be "in possession by the secured party" for purposes
of perfecting the
security interest pursuant to Section 9-305 of the New York
Uniform Commercial
Code; and (d) notifications to persons holding such property,
and
acknowledgments, receipts or confirmations from persons holding
such property,
shall be deemed notifications to, or acknowledgments, receipts
or confirmations
from, financial intermediaries, bailees or agents (as
applicable) of the Trustee
for the benefit of the Certificateholders for the purpose of
perfecting such
security interest under applicable law (except that nothing in
this clause (e)
shall cause any person to be deemed to be an agent of the
Trustee for any
purpose other than for perfection of such security interests
unless, and then
only to the extent, expressly appointed and authorized by the
Trustee in
writing). The Depositor and the Trustee, upon directions from
the Depositor,
shall, to the extent consistent with this Agreement, take such
actions as may be
necessary to ensure that, if this Agreement were deemed to
create a security
interest in the Mortgage Loans, 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.
(e) The Depositor hereby sells, transfers, assigns, sets
over and otherwise conveys to the Trustee in trust for the
benefit of the
Certificateholders, without recourse, all right, title and
interest in such
Subsequent Mortgage Loans (which does not include servicing
rights), including
all interest and principal due on or with respect to such
Subsequent Mortgage
Loans on or after the related Subsequent Transfer Date and all
interest and
principal payments on such Subsequent Mortgage Loans received
prior to the
Subsequent Transfer Date in respect of installments of interest
and principal
due thereafter, but not including principal and interest due on
such Subsequent
Mortgage Loans prior to the related Subsequent Transfer Date,
any insurance
policies in respect of such Subsequent Mortgage Loans and all
proceeds of any of
the foregoing.
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<PAGE>
(f) Upon one Business Day's prior written notice to the
Trustee, the Servicers and the Rating Agencies, on any Business
Day during the
Pre-Funding Period designated by the Depositor, the Depositor,
DLJMC, the
Servicers and the Trustee shall complete, execute and deliver a
Subsequent
Transfer Agreement so long as no Rating Agency has provided
notice that the
execution and delivery of such Subsequent Transfer Agreement
will result in a
reduction or withdrawal of the ratings assigned to the
Certificates.
The transfer of Subsequent Mortgage Loans and the other
property and rights relating to them on a Subsequent Transfer
Date is subject to
the satisfaction of each of the following conditions:
(i) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date satisfies the representations and
warranties
applicable to it under this Agreement as of the applicable
Subsequent
Transfer Date; provided, however, that with respect to a breach
of a
representation and warranty with respect to a Subsequent
Mortgage Loan,
the obligation under Section 2.03(f) of this Agreement of the
Seller to
cure, repurchase or replace such Subsequent Mortgage Loan
shall
constitute the sole remedy against the Seller respecting such
breach
available to Certificateholders, the Depositor or the
Trustee;
(ii) the Trustee and the Rating Agencies are provided with
an Opinion of Counsel or Opinions of Counsel, at the expense of
the
Depositor, stating that each REMIC in the Trust Fund is and
shall
continue to qualify as a REMIC following the transfer of the
Subsequent
Mortgage Loans, to be delivered as provided pursuant to
Section
2.01(g);
(iii) the Rating Agencies and the Trustee are provided with
an Opinion of Counsel or Opinions of Counsel, at the expense of
the
Depositor, confirming that the transfer of the Subsequent
Mortgage
Loans conveyed on such Subsequent Transfer Date is a true sale,
to be
delivered as provided pursuant to Section 2.01(g);
(iv) the execution and delivery of such Subsequent
Transfer Agreement or conveyance of the related Subsequent
Mortgage
Loans does not result in a reduction or withdrawal of any
ratings
assigned to the Certificates by the Rating Agencies;
(v) no Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date is 30 or more days contractually
delinquent as
of such date;
(vi) the remaining term to stated maturity of such
Subsequent Mortgage Loan does not exceed 30 years for fully
amortizing
loans or 15 years for balloon loans; (vii) such Subsequent
Mortgage
Loan does not have a Net Mortgage Rate less than 4.00% per
annum;
(viii) the Depositor shall have deposited in the Collection
Account all principal and interest collected with respect to
the
related Subsequent Mortgage Loans on or after the related
Subsequent
Transfer Date;
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<PAGE>
(ix) such Subsequent Mortgage Loan does not have a
Combined Loan-to-Value Ratio greater than 100.00%;
(x) such Subsequent Mortgage Loan has a principal balance
not greater than $400,000;
(xi) no Subsequent Mortgage Loan shall have a final
maturity date after June 1, 2035;
(xii) such Subsequent Mortgage Loan is secured by a first
or second lien;
(xiii) such Subsequent Mortgage Loan is otherwise acceptable
to the Rating Agencies;
(xiv) [reserved];
(xv) following the conveyance of such Subsequent Mortgage
Loans on such Subsequent Transfer Date the characteristics of
the
Mortgage Loans (based on the Initial Mortgage Loans as of the
Cut-off
Date and the Subsequent Mortgage Loans as of their related
Subsequent
Transfer Date) will be as follows:
A. a weighted average Mortgage Rate of at least 9.75%
per annum;
B. a weighted average remaining term to stated maturity
of less than 220 months;
C. a weighted average Combined Loan-to-Value Ratio of
not more than 96.89%;
D. a weighted average credit score of at least 678;
E. no more than 79.84% of the Mortgage Loans by
aggregate Cut-off Date Principal Balance are balloon
loans;
F. no more than 43.42% of the Mortgage Loans by
aggregate Cut-off Date Principal Balance are
concentrated in one state; and
G. no more than 10.33% of the Mortgage Loans by
aggregate Cut-off Date Principal Balance relate to
non-owner occupied properties;
(xvi) neither the Seller nor the Depositor shall be
insolvent or shall be rendered insolvent as a result of such
transfer;
(xvii) no Event of Default has occurred hereunder; and
(xviii) the Depositor shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each of
these
conditions precedent.
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<PAGE>
(g) Upon (1) delivery to the Trustee by the Depositor of
the Opinions of Counsel referred to in Sections 2.01(f)(ii) and
(iii), (2)
delivery to the Trustee by the Depositor of a revised Mortgage
Loan Schedule
reflecting the Subsequent Mortgage Loans conveyed on such
Subsequent Transfer
Date and the related Subsequent Mortgage Loans and (3) delivery
to the Trustee
by the Depositor of an Officer's Certificate confirming the
satisfaction of each
of the conditions precedent set forth in Section 2.01(f), the
Trustee shall
remit to the Depositor the Aggregate Subsequent Transfer Amount
related to the
Subsequent Mortgage Loans transferred by the Depositor on such
Subsequent
Transfer Date from funds in the Pre-Funding Account.
The Trustee shall not be required to investigate or
otherwise
verify compliance with the conditions set forth in the preceding
paragraph,
except for its own receipt of documents specified above, and
shall be entitled
to rely on the required Officer's Certificate.
SECTION 2.02 Acceptance by the Trustee.
The Trustee acknowledges receipt by itself or the Custodian
of
the documents identified in the Initial Certification in the
form annexed hereto
as Exhibit G and declares that it or the Custodian on its behalf
hold and will
hold the documents delivered to it or the Custodian,
respectively, constituting
the Mortgage Files, and that it or the Custodian holds or will
hold such other
assets as are included in the Trust Fund, in trust for the
exclusive use and
benefit of all present and future Certificateholders. The
Trustee acknowledges
that it or the Custodian will maintain possession of the
Mortgage Notes in the
State of Texas or the State of Illinois, as directed by the
Seller, unless
otherwise permitted by the Rating Agencies.
The Custodian is required under the Custodial Agreement to
execute and deliver on the Closing Date to the Depositor, the
Seller, the
Trustee and the Servicers an Initial Certification in the form
annexed hereto as
Exhibit G with respect to the Mortgage Loans delivered to the
Custodian. The
Trustee shall deliver on the Closing Date to the Depositor, the
Seller, the
Trustee and the Servicers an Initial Certification in the form
annexed hereto as
Exhibit G with respect to the Mortgage Loans delivered to the
Trustee. Based on
its respective review and examination, and only as to the
documents identified
in such related Initial Certification, pursuant to the Custodial
Agreement, the
Custodian will acknowledge that such documents delivered to it
appear regular on
their face and relate to such Mortgage Loan and pursuant to this
Agreement the
Trustee will acknowledge that such documents delivered to it
appear regular on
their face and relate to such Mortgage Loan. Neither the Trustee
nor the
Custodian shall be under any duty or obligation to inspect,
review or examine
said documents, instruments, certificates or other papers to
determine that the
same are genuine, enforceable or appropriate for the represented
purpose or that
they have actually been recorded in the real estate records or
that they are
other than what they purport to be on their face.
Not later than 90 days after the Closing Date, the Trustee
and
the Custodian are each required to deliver to the Depositor, the
Seller, the
Trustee and the Servicers a Final Certification with respect to
the Mortgage
Loans delivered to it in the form annexed hereto as Exhibit H,
with any
applicable exceptions noted thereon.
55
<PAGE>
If, in the course of such review, the Trustee or the
Custodian, as applicable, finds any document constituting a part
of a Mortgage
File which does not meet the requirements of Section 2.01, the
Trustee or,
pursuant to the Custodial Agreement, the Custodian, will list
such as an
exception in the Final Certification; provided, however, that
neither the
Trustee nor the Custodian shall make any determination as to
whether (i) any
endorsement is sufficient to transfer all right, title and
interest of the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note or
(ii) any assignment is in recordable form or is sufficient to
effect the
assignment of and transfer to the assignee thereof under the
mortgage to which
the assignment relates.
The Seller shall promptly correct or cure such defect within
120 days from the date it was so notified of such defect and, if
the Seller does
not correct or cure such defect within such period and such
defect materially
and adversely affects the interests of the Certificateholders in
the related
Mortgage Loan, the Seller shall either (a) substitute for the
related Mortgage
Loan a Qualified Substitute Mortgage Loan, which substitution
shall be
accomplished in the manner and subject to the conditions set
forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within
120 days from
the date the Seller was notified of such defect in writing at
the Repurchase
Price of such Mortgage Loan; provided, however, that in no event
shall such
substitution or repurchase occur more than 540 days from the
Closing Date,
except that if the substitution or repurchase of a Mortgage Loan
pursuant to
this provision is required by reason of a delay in delivery of
any documents by
the appropriate recording office, then such substitution or
repurchase shall
occur within 720 days from the Closing Date; and further
provided, that the
Seller shall have no liability for recording any Assignment of
Mortgage in favor
of the Trustee or for the Trustee's failure to record such
Assignment of
Mortgage, and the Seller shall not be obligated to repurchase or
cure any
Mortgage Loan solely as a result of the Trustee's failure to
record such
Assignment of Mortgage. The Trustee shall deliver written notice
to each Rating
Agency within 360 days from the Closing Date indicating each
Mortgage Loan (a)
the Assignment of Mortgage which has not been returned by the
appropriate
recording office or (b) as to which there is a dispute as to
location or status
of such Mortgage Loan. Such notice shall be delivered every 90
days thereafter
until the Assignment of Mortgage for the related Mortgage Loan
is returned to
the Trustee or the dispute as to location or status has been
resolved. Any such
substitution pursuant to (a) above shall not be effected prior
to the delivery
to the Trustee of the Opinion of Counsel required by Section
2.05 hereof, if
any, and any substitution pursuant to (a) above shall not be
effected prior to
the additional delivery to the Trustee of a Request for Release
substantially in
the form of Exhibit M. No substitution is permitted to be made
in any calendar
month after the Determination Date for such month. The
Repurchase Price for any
such Mortgage Loan shall be deposited by the Seller in the
Certificate Account
on or prior to the Business Day immediately preceding such
Distribution Date in
the month following the month of repurchase and, upon receipt of
such deposit
and certification with respect thereto in the form of Exhibit M
hereto, the
Trustee shall release the related Mortgage File to the Seller
and shall execute
and deliver at such entity's request such instruments of
transfer or assignment
prepared by such entity, in each case without recourse, as shall
be necessary to
vest in such entity, or a designee, the Trustee's interest in
any Mortgage Loan
released pursuant hereto. In furtherance of the foregoing, if
the Seller is not
a member of MERS and repurchases a Mortgage Loan which is
registered on the
MERS(R) System,
56
<PAGE>
the Seller, at its own expense and without any right of
reimbursement, shall
cause MERS to execute and deliver an assignment of the Mortgage
in recordable
form to transfer the Mortgage from MERS to the Seller and shall
cause such
Mortgage to be removed from registration on the MERS(R) System
in accordance
with MERS' rules and regulations.
Pursuant to the Custodial Agreement, the Custodian is
required
to execute and deliver on the Subsequent Transfer Date to the
Depositor, the
Seller, the Trustee and the Servicers an Initial Certification
in the form
annexed hereto as Exhibit G. Based on its review and
examination, and only as to
the documents identified in such Initial Certification, the
Custodian shall
acknowledge that such documents appear regular on their face and
relate to such
Subsequent Mortgage Loan. Neither the Trustee nor the Custodian
shall be under a
duty or obligation to inspect, review or examine said documents,
instruments,
certificates or other papers to determine that the same are
genuine, enforceable
or appropriate for the represented purpose or that they have
actually been
recorded in the real estate records or that they are other than
what they
purport to be on their face.
Pursuant to the Custodial Agreement, not later than 90 days
after the end of the Pre-Funding Period, the Custodian is
required to deliver to
the Depositor, the Seller, the Trustee and the related Servicer
a Final
Certification with respect to the Subsequent Mortgage Loans in
the form annexed
hereto as Exhibit H with any applicable exceptions noted
thereon.
If, in the course of such review of the Mortgage Files
relating to the Subsequent Mortgage Loans, the Custodian finds
any document
constituting a part of a Mortgage File which does not meet the
requirements of
Section 2.01, pursuant to the Custodial Agreement, the Custodian
will be
required to list such as an exception in the Final
Certification; provided,
however that neither the Trustee nor the Custodian shall make
any determination
as to whether (i) any endorsement is sufficient to transfer all
right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form
or is sufficient
to effect the assignment of and transfer to the assignee thereof
under the
mortgage to which the assignment relates. The Seller shall cure
any such defect
or repurchase or substitute for any such Mortgage Loan in
accordance with
Section 2.02(a).
It is understood and agreed that the obligation of the
Seller
to cure, substitute for or to repurchase any Mortgage Loan which
does not meet
the requirements of Section 2.01 shall constitute the sole
remedy respecting
such defect available to the Trustee, the Depositor and any
Certificateholder
against the Seller.
The Trustee shall pay to the Custodian from time to time
reasonable compensation for all services rendered by it
hereunder or under the
Custodial Agreement, and the Trustee shall pay or reimburse the
Custodian upon
its request for all reasonable expenses, disbursements and
advances incurred or
made by the Custodian in accordance with any of the provisions
of this Agreement
or the Custodial Agreement, except any such expense,
disbursement or advance as
may arise from its negligence or bad faith.
57
<PAGE>
SECTION 2.02 Representations and Warranties of the Seller
and
Servicers.
(a) The Seller hereby makes the representations and
warranties applicable to it set forth in Schedule II hereto, and
by this
reference incorporated herein, to the Depositor and the Trustee,
as of the
Closing Date, or if so specified therein, as of the Cut-off Date
or such other
date as may be specified.
(b) Wilshire, in its capacity as Servicer, hereby makes
the representations and warranties applicable to it set forth in
Schedule IIIA
hereto, and by this reference incorporated herein, to the
Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as
of the Cut-off
Date or such other date as may be specified.
(c) IndyMac, in its capacity as Servicer, hereby makes
the representations and warranties applicable to it set forth in
Schedule IIIB
hereto, and by this reference incorporated herein, to the
Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as
of the Cut-off
Date or such other date as may be specified.
(d) Each of Wilshire and IndyMac, in their capacity as
Servicers, will use its reasonable efforts to become a member of
MERS in good
standing, and will comply in all material respects with the
rules and procedures
of MERS in connection with the servicing of the Mortgage Loans
that are
registered with MERS.
(e) The Seller hereby makes the representations and
warranties set forth in Schedule IV as applicable hereto, and by
this reference
incorporated herein, to the Trustee, as of the Closing Date, or
the Subsequent
Transfer Date, as applicable, or if so specified therein, as of
the Cut-off Date
or such other date as may be specified.
(f) Upon discovery by any of the parties hereto of a
breach of a representation or warranty made pursuant to Section
2.03(e) that
materially and adversely affects the interests of the
Certificateholders in any
Mortgage Loan, the party discovering such breach shall give
prompt notice
thereof to the other parties. The Seller hereby covenants that
within 120 days
of the earlier of its discovery or its receipt of written notice
from any party
of a breach of any representation or warranty made by it
pursuant to Section
2.03(e) which materially and adversely affects the interests of
the
Certificateholders in any Mortgage Loan sold by the Seller to
the Depositor, it
shall cure such breach in all material respects, and if such
breach is not so
cured, shall, (i) if such 120-day period expires prior to the
second anniversary
of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from
the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan,
in the manner and subject to the conditions set forth in this
Section; or (ii)
repurchase the affected Mortgage Loan from the Trustee at the
Repurchase Price
in the manner set forth below; provided, however, that any such
substitution
pursuant to (i) above shall not be effected prior to the
delivery to the Trustee
of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any such
substitution pursuant to (i) above shall not be effected prior
to the additional
delivery to the Trustee of a Request for Release substantially
in the form of
Exhibit M and the Mortgage File for any such Qualified
Substitute Mortgage Loan.
The Seller shall promptly reimburse the Trustee for any actual
out-of-pocket
58
<PAGE>
expenses reasonably incurred by the Trustee in respect of
enforcing the remedies
for such breach. With respect to any representation and
warranties described in
this Section which are made to the best of a Seller's knowledge
if it is
discovered by 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 or
the interests of
the Certificateholders therein, notwithstanding the Seller's
lack of knowledge
with respect to the substance of such representation or
warranty, such
inaccuracy shall be deemed a breach of the applicable
representation or
warranty.
With respect to any Qualified Substitute Mortgage Loan or
Loans, the Seller shall deliver to the Trustee for the benefit
of the
Certificateholders the Mortgage Note, the Mortgage, the related
assignment of
the Mortgage, and such other documents and agreements as are
required by Section
2.01(b), with the Mortgage Note endorsed and the Mortgage
assigned as required
by Section 2.01. No substitution is permitted to be made in any
calendar month
after the Determination Date for such month. Scheduled Payments
due with respect
to Qualified Substitute Mortgage Loans in the month of
substitution shall not be
part of the Trust Fund and will be retained by the Seller on the
next succeeding
Distribution Date. For the month of substitution, distributions
to
Certificateholders will include the monthly payment due on any
Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled
to retain all
amounts received in respect of such Deleted Mortgage Loan. The
Seller shall
amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the
substitution of the
Qualified Substitute Mortgage Loan or Loans and the Seller shall
deliver the
amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to
the terms of
this Agreement in all respects, and the Seller shall be deemed
to have made with
respect to such Qualified Substitute Mortgage Loan or Loans, as
of the date of
substitution, the representations and warranties made pursuant
to Section
2.03(e) with respect to such Mortgage Loan. Upon any such
substitution and the
deposit to the Certificate Account of the amount required to be
deposited
therein in connection with such substitution as described in the
following
paragraph, the Trustee shall release the Mortgage File held for
the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to
the Seller and
shall execute and deliver at the Seller's direction such
instruments of transfer
or assignment prepared by the Seller, in each case without
recourse, as shall be
necessary to vest title in the Seller, or its designee, the
Trustee's interest
in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the
Trustee shall determine the amount (if any) by which the
aggregate principal
balance of all such Qualified Substitute Mortgage Loans as of
the date of
substitution is less than the aggregate Stated Principal Balance
of all such
Deleted Mortgage Loans (after application of the scheduled
principal portion of
the monthly payments due in the month of substitution). The
amount of such
shortage (the "Substitution Adjustment Amount") plus an amount
equal to the sum
of (i) the aggregate of any unreimbursed Advances with respect
to such Deleted
Mortgage Loans and (ii) any costs and damages actually incurred
and paid by or
on behalf of the Trust in connection with any breach of the
representation and
warranty set forth in Schedule IV (xx) as the result of a
violation of a
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predatory or abusive lending law applicable to such Mortgage
Loan shall be
deposited in the Certificate Account by the Seller on or before
the Business Day
immediately preceding the Distribution Date in the month
succeeding the calendar
month during which the related Mortgage Loan became required to
be repurchased
or replaced hereunder.
In the event that the Seller shall have repurchased a
Mortgage
Loan, the Repurchase Price therefor shall be deposited in the
Certificate
Account on or before the Business Day immediately preceding the
Distribution
Date in the month following the month during which the Seller
became obligated
hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of
the Repurchase Price, the delivery of the Opinion of Counsel if
required by
Section 2.05 and receipt of a Request for Release in the form of
Exhibit M
hereto, the Trustee shall release the related Mortgage File held
for the benefit
of the Certificateholders to such Person, and the Trustee shall
execute and
deliver at such Person's direction such instruments of transfer
or assignment
prepared by such Person, in each case without recourse, as shall
be necessary to
transfer title from the Trustee. It is understood and agreed
that the obligation
under this Agreement of any Person to cure, repurchase or
substitute any
Mortgage Loan as to which a breach has occurred and is
continuing shall
constitute the sole remedy against such Persons respecting such
breach available
to Certificateholders, the Depositor or the Trustee on their
behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Mortgage
Files to the
Trustee for the benefit of the Certificateholders.
SECTION 2.03 Representations and Warranties of the Depositor
as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with respect to the Mortgage Loans that, as of the Closing Date,
assuming good
title has been conveyed to the Depositor, the Depositor had good
title to the
Mortgage Loans and Mortgage Notes, and did not encumber the
Mortgage Loans
during its period of ownership thereof, other than as
contemplated by the
Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery
of the Mortgage
Files to the Trustee.
SECTION 2.04 Delivery of Opinion of Counsel in Connection
with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than
120 days after the
Closing Date unless the Seller delivers to the Trustee an
Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either
the Trustee or
the Trust Fund, addressed to the Trustee, to the effect that
such substitution
will not (i) result in the imposition of the tax on "prohibited
transactions" on
the Trust Fund or contributions after the Startup Date, as
defined in Sections
860F(a)(2) and
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860G(d) of the Code, respectively, or (ii) cause any REMIC
created hereunder to
fail to qualify as a REMIC at any time that any Certificates are
outstanding.
SECTION 2.05 Execution and Delivery of Certificates.
The Trustee (or the Custodian) acknowledges receipt of the
items described in Section 2.02 of this Agreement and the
documents identified
in the Initial Certification in the form annexed hereto as
Exhibit G and,
concurrently with such receipt, has executed and delivered to or
upon the order
of the Depositor, the Certificates in authorized denominations
evidencing
directly or indirectly the entire ownership of the Trust Fund.
The Trustee
agrees to hold the Trust Fund and exercise the rights referred
to above for the
benefit of all present and future Holders of the Certificates
and to perform the
duties set forth in this Agreement to the best of its ability,
to the end that
the interests of the Holders of the Certificates may be
adequately and
effectively protected.
SECTION 2.06 REMIC Matters.
The Preliminary Statement sets forth the designations and
"latest possible maturity date" for federal income tax purposes
of all interests
created hereby. The "Startup Day" for purposes of the REMIC
Provisions shall be
the Closing Date. The REMIC 1 Regular Interests shall be
designated as the
"regular interests" in REMIC 1. The REMIC 2 Regular Interests
shall be
designated as the "regular interests" in REMIC 2. The Class A-1,
Class A-2,
Class A-3, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6,
Class M-7, Class M-8, Class M-9, Class B-1, Class B-2, Class P,
Class X-1 and
Class X-S Certificates shall be designated as the "regular
interests" in REMIC
3. The Class A-RL Certificates will constitute the sole class of
residual
interests in REMIC 1 and the Class A-R Certificates will
represent beneficial
ownership of two residual interests, Class R-2 Interest and
Class R-3 Interest,
each of which will constitute the sole class of residual
interests in each of
REMIC 2 and REMIC 3, respectively. The Trustee shall not permit
the creation of
any "interests" (within the meaning of Section 860G of the Code)
in REMIC 1,
REMIC 2 or REMIC 3 other than the Certificates, the REMIC 1
Regular Interests or
the REMIC 2 Regular Interests. The "tax matters person" with
respect to each of
REMIC 1, REMIC 2 and REMIC 3 shall be the Holder of the Class
A-R Certificate
and Class A-RL Certificate at any time holding the largest
Percentage Interest
thereof in the manner provided under Treasury regulations
section 1.860F-4(d)
and Treasury regulations section 301.6231(a)(7)-1. The fiscal
year for each
REMIC shall be the calendar year. In addition, the Class X-1
Certificateholders
shall be deemed to have entered into a contractual arrangement
with the Class
A-R Certificateholders or Class A-RL Certificateholders whereby
the Class A-R
Certificateholders or Class A-RL Certificateholders agree to pay
to the Class
X-1 Certificateholders on each Distribution Date amounts that
would, in the
absence of such contractual agreement, be distributable with
respect to the
residual interest in REMIC 1, REMIC 2, and REMIC 3 pursuant to
Section
4.02(b)(iv)(P) (which amounts are expected to be zero).
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SECTION 2.07 Covenants of each Servicer.
Each respective Servicer hereby covenants to the Depositor
and
the Trustee that no written information, certificate of an
officer, statement
furnished in writing or written report prepared by such Servicer
and delivered
to the Depositor, any affiliate of the Depositor or the Trustee
and prepared by
such Servicer pursuant to this Agreement will contain any untrue
statement of a
material fact.
SECTION 2.08 Conveyance of REMIC Regular Interests and
Acceptance of REMIC 1, REMIC 2 and REMIC 3 by the
Trustee; Issuance of Certificates.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and
otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the
Depositor in and to the REMIC 1 Regular Interests for the
benefit of the Holder
of the REMIC 2 Regular Interests and the Holders of the Class
R-2 Interest. The
Trustee acknowledges receipt of the REMIC 1 Regular Interests
(each of which is
uncertificated) and declares that it holds and will hold the
same in trust for
the exclusive use and benefit of the Holders of the REMIC 2
Regular Interests
and Holder of the Class R-2 Interest. The interests evidenced by
the Class R-2
Interest, together with the REMIC 2 Regular Interests,
constitute the entire
beneficial ownership interest in REMIC 2.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and
otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the
Depositor in and to the REMIC 2 Regular Interests for the
benefit of the Holders
of the Regular Certificates and the Class R-3 Interest. The
Trustee acknowledges
receipt of the REMIC 2 Regular Interests (each of which is
uncertificated) and
declares that it holds and will hold the same in trust for the
exclusive use and
benefit of the Holders of the Regular Certificates and of the
Class R-3
Interest. The interests evidenced by the Class R-3 Interest,
together with the
REMIC 3 Regular Interests, constitute the entire beneficial
ownership interest
in REMIC 3.
(c) In exchange for the REMIC 2 Regular Interests and,
concurrently with the assignment to the Trustee thereof,
pursuant to the written
request of the Depositor executed by an officer of the
Depositor, the Trustee
has executed, authenticated and delivered to or upon the order
of the Depositor,
the Regular Certificates in authorized denominations evidencing
(together with
the Class R-3 Interest) the entire beneficial ownership interest
in REMIC 3.
(d) Concurrently with (i) the assignment and delivery to
the Trustee of REMIC 1 (including the Residual Interest therein
represented by
the Class A-RL Certificates) and the acceptance by the Trustee
thereof, pursuant
to Section 2.01, Section 2.02 and Section 2.09(a); and (ii) the
assignment and
delivery to the Trustee of REMIC 2 (including the Residual
Interest therein
represented by the Class R-2 Interest) and the acceptance by the
Trustee
thereof, pursuant to Section 2.09(b); and (iii) the assignment
and delivery to
the Trustee of REMIC 3 (including the Residual Interest therein
represented by
the Class R-3 Interest) and the acceptance
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by the Trustee thereof, pursuant to Section 2.09(c), the
Trustee, pursuant to
the written request of the Depositor executed by an officer of
the Depositor,
has executed, authenticated and delivered to or upon the order
of the Depositor,
the Class A-RL and the Class A-R Certificates in authorized
denominations
evidencing the Class R-2 Interest and the Class R-3
Interest.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, each Servicer
shall service and administer the Mortgage Loans in accordance
with the terms of
this Agreement and with Accepted Servicing Practices. The
obligations of each of
Wilshire and IndyMac hereunder to service and administer the
Mortgage Loans
shall be limited to the Wilshire Serviced Loans and IndyMac
Serviced Loans,
respectively; and with respect to the duties and obligations of
each Servicer,
references herein to the "Mortgage Loans" or "related Mortgage
Loans" shall be
limited to the Wilshire Serviced Loans (and the related proceeds
thereof and
related REO Properties), in the case Wilshire and the IndyMac
Serviced Loans
(and the related proceeds thereof and related REO Properties),
in the case of
IndyMac, and in no event shall any Servicer have any
responsibility or liability
with respect to any of the other Mortgage Loans. Notwithstanding
anything in
this Agreement, any Subservicing Agreement or the Credit Risk
Management
Agreement to the contrary, neither Wilshire nor IndyMac shall
have any duty or
obligation to enforce any Credit Risk Management Agreement or to
supervise,
monitor or oversee the activities of the Credit Risk Manager
under its Credit
Risk Management Agreement with respect to any action taken or
not taken by
Wilshire or IndyMac, as applicable, pursuant to a recommendation
of the Credit
Risk Manager. In connection with such servicing and
administration, each
Servicer shall have full power and authority, acting alone
and/or through
Subservicers as provided in Section 3.02 hereof, to do or cause
to be done any
and all things that it may deem necessary or desirable in
connection with such
servicing and administration, including but not limited to, the
power and
authority, subject to the terms hereof (i) to execute and
deliver, on behalf of
the Certificateholders and the Trustee, customary consents or
waivers and other
instruments and documents, (ii) to consent to transfers of any
Mortgaged
Property and assumptions of the Mortgage Notes and related
Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any
Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate
foreclosure or
other conversion of the ownership of the Mortgaged Property
securing any
Mortgage Loan; provided that a Servicer shall not take any
action that is
materially inconsistent with or materially prejudices the
interests of the Trust
Fund or the Certificateholders in any Mortgage Loan or the
rights and interests
of the Depositor, the Trustee or the Certificateholders under
this Agreement
unless such action is specifically called for by the terms
hereof. The Trustee
will provide a limited power of attorney to each Servicer,
prepared by each
Servicer and reasonably acceptable to the Trustee, to permit
each Servicer to
act on behalf of the Trustee under this Agreement. Each Servicer
hereby
indemnifies the Trustee for all costs and expenses incurred by
the Trustee in
connection with the negligent or willful misuse of such power of
attorney. Each
Servicer shall represent and protect the interests of the Trust
Fund in the same
manner as it protects its own interests in mortgage loans in its
own portfolio
in any claim, proceeding or litigation regarding a Mortgage
Loan. Each Servicer
further is hereby authorized and empowered in its own name or in
the name of the
Subservicer, when such Servicer or the
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Subservicer, as the case may be, believes it is appropriate in
its best judgment
to register any Mortgage Loan on the MERS(R) System, or cause
the removal from
the registration of any Mortgage Loan on the MERS(R) System, to
execute and
deliver, on behalf of the Trustee and the Certificateholders or
any of them, any
and all instruments of assignment and other comparable
instruments with respect
to such assignment or re-recording of a Mortgage in the name of
MERS, solely as
nominee for the Trustee and its successors and assigns. Any
reasonable expenses
incurred in connection with the actions described in the
preceding sentence or
as a result of MERS discontinuing or becoming unable to continue
operations in
connection with the MERS(R) System, shall be reimbursable by the
Trust Fund to
such Servicer. Notwithstanding the foregoing, subject to Section
3.05(a), the
Servicers shall not make or permit any modification, waiver or
amendment of any
Mortgage Loan that would both constitute a sale or exchange of
such Mortgage
Loan within the meaning of Section 1001 of the Code and any
proposed, temporary
or final regulations promulgated thereunder (other than in
connection with a
proposed conveyance or assumption of such Mortgage Loan that is
treated as a
Principal Prepayment in Full pursuant to Section 3.10 hereof)
which would cause
any of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a
REMIC. Without
limiting the generality of the foregoing, each Servicer, in its
own name or in
the name of the Depositor and the Trustee, is hereby authorized
and empowered by
the Depositor and the Trustee, when such Servicer believes it
appropriate in its
reasonable judgment, to execute and deliver, on behalf of the
Trustee, the
Depositor, the Certificateholders or any of them, any and all
instruments of
satisfaction or cancellation, or of partial or full release or
discharge and all
other comparable instruments, with respect to the Mortgage
Loans, and with
respect to the Mortgaged Properties held for the benefit of
the
Certificateholders. Each Servicer shall prepare and deliver to
the Depositor
and/or the Trustee such documents requiring execution and
delivery by either or
both of them as are necessary or appropriate to enable such
Servicer to service
and administer the Mortgage Loans to the extent that such
Servicer is not
permitted to execute and deliver such documents pursuant to the
preceding
sentence. Upon receipt of such documents and a written request
signed by an
authorized officer, the Depositor and/or the Trustee shall
execute such
documents and deliver them to such Servicer.
In accordance with the standards of the preceding paragraph,
each Servicer shall advance or cause to be advanced funds as
necessary for the
purpose of effecting the payment of taxes and assessments on any
Mortgaged
Property (to the extent such Servicer has been notified that
such taxes or
assessments have not paid by the related Mortgagor or the owner
or the servicer
of the related First Mortgage Loan), which advances shall be
reimbursable in the
first instance from related collections from the Mortgagors
pursuant to Section
3.06, and further as provided in Section 3.08; provided,
however, that each
Servicer shall be required to advance only to the extent that
such advances, in
the good faith judgment of such Servicer, will be recoverable by
such Servicer
out of Insurance Proceeds, Liquidation Proceeds, or otherwise
out of the
proceeds of the related Mortgage Loan; and provided, further,
that such payments
shall be advanced within such time period required to avoid the
loss of the
Mortgaged Property by foreclosure of a tax or other lien. The
costs incurred by
a Servicer, if any, in effecting the timely payments of taxes
and assessments on
the Mortgaged Properties and related insurance premiums shall
not, for the
purpose of calculating monthly distributions to the
Certificateholders, be added
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to the Stated Principal Balances of the related Mortgage Loans,
notwithstanding
that the terms of such Mortgage Loans so permit.
Subject to the provisions of the first paragraph of this
Section, the Trustee shall execute, at the written request of a
Servicer, and
furnish to such Servicer and any Subservicer such documents as
are necessary or
appropriate to enable such Servicer or any Subservicer to carry
out their
servicing and administrative duties hereunder, and the Trustee
hereby grants to
each Servicer a power of attorney, to be completed in the form
of Exhibit AA
hereto, to carry out such duties. The Trustee shall not be
liable for the
actions of the Servicers or any Subservicers under such powers
of attorney.
If the Mortgage relating to a Mortgage Loan had a lien
senior
to the Mortgage Loan on the related Mortgaged Property as of the
Cut-off Date,
then the related Servicer, in such capacity, may consent to the
refinancing of
the prior senior lien, provided that the following requirements
are met:
(i) the resulting Combined Loan-to-Value Ratio of such
Mortgage Loan is no higher than the Combined Loan-to-Value Ratio
prior
to such refinancing; and
(ii) the interest rate, or, in the case of an adjustable
rate existing senior lien, the maximum interest rate, for the
loan
evidencing the refinanced senior lien is no more than 2.0%
higher than
the interest rate or the maximum interest rate, as the case may
be, on
the loan evidencing the existing senior lien immediately prior
to the
date of such refinancing; and
(iii) the loan evidencing the refinanced senior lien is not
subject to negative amortization.
With respect to the Mortgage Loans, the Servicer of each
Mortgage Loan agrees that, with respect to the Mortgagors of
such Mortgage
Loans, such Servicer for each Mortgage Loan shall furnish, in
accordance with
the Fair Credit Reporting Act and its implementing regulations,
accurate and
complete information on its borrower credit files to Equifax,
Experian and Trans
Union Credit Information Company on a monthly basis.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a
Subservicer on behalf of the related Servicer in accordance with
the servicing
provisions of this Agreement, provided that the Subservicer is
an approved
Fannie Mae or Freddie Mac seller/servicer in good standing. A
Servicer may
perform any of its servicing responsibilities hereunder or may
cause the
Subservicer to perform any such servicing responsibilities on
its behalf, but
the use by such Servicer of the Subservicer shall not release
such Servicer from
any of its obligations hereunder and such Servicer shall remain
responsible
hereunder for all acts and omissions of the
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Subservicer as fully as if such acts and omissions were those of
such Servicer.
Each Servicer shall pay all fees and expenses of any Subservicer
engaged by such
Servicer from its own funds.
Notwithstanding the foregoing, each Servicer shall be
entitled
to outsource one or more separate servicing functions to a
Person (each, an
"Outsourcer") that does not meet the eligibility requirements
for a Subservicer,
so long as such outsourcing does not constitute the delegation
of such
Servicer's obligation to perform all or substantially all of the
servicing of
the related Mortgage Loans to such Outsourcer. In such event,
the use by a
Servicer of any such Outsourcer shall not release such Servicer
from any of its
obligations hereunder and such Servicer shall remain responsible
hereunder for
all acts and omissions of such Outsourcer as fully as if such
acts and omissions
were those of such Servicer, and such Servicer shall pay all
fees and expenses
of the Outsourcer from such Servicer's own funds.
(b) At the cost and expense of a Servicer, without any
right of reimbursement from the Depositor, Trustee, the Trust
Fund, or the
Collection Account, such Servicer shall be entitled to terminate
the rights and
responsibilities of its Subservicer and arrange for any
servicing
responsibilities to be performed by a successor Subservicer
meeting the
requirements set forth in Section 3.02(a), provided, however,
that nothing
contained herein shall be deemed to prevent or prohibit such
Servicer, at such
Servicer's option, from electing to service the related Mortgage
Loans itself.
In the event that a Servicer's responsibilities and duties under
this Agreement
are terminated pursuant to Section 7.01, and if requested to do
so by the
Trustee, such Servicer shall at its own cost and expense
terminate the rights
and responsibilities of its Subservicer as soon as is reasonably
possible. Each
Servicer shall pay all fees, expenses or penalties necessary in
order to
terminate the rights and responsibilities of its Subservicer
from such
Servicer's own funds without any right of reimbursement from the
Depositor,
Trustee, the Trust Fund, or the Collection Account.
(c) Notwithstanding any of the provisions of this
Agreement relating to agreements or arrangements between a
Servicer and its
Subservicer, a Servicer and its Outsourcer, or any reference
herein to actions
taken through the Subservicer, the Outsourcer, or otherwise, no
Servicer shall
be relieved of its obligations to the Depositor, Trustee or
Certificateholders
and shall be obligated to the same extent and under the same
terms and
conditions as if it alone were servicing and administering the
related Mortgage
Loans. Each Servicer shall be entitled to enter into an
agreement with its
Subservicer and Outsourcer for indemnification of such Servicer
or Outsourcer,
as applicable, by such Subservicer and nothing contained in this
Agreement shall
be deemed to limit or modify such indemnification.
For purposes of this Agreement, a Servicer shall be deemed
to
have received any collections, recoveries or payments with
respect to the
related Mortgage Loans that are received by a related
Subservicer or Outsourcer,
as applicable, regardless of whether such payments are remitted
by the
Subservicer or Outsourcer, as applicable, to such Servicer.
Any Subservicing Agreement and any other transactions or
services relating to the Mortgage Loans involving a Subservicer
or an Outsourcer
shall be deemed to be between the Subservicer or an Outsourcer,
and related
Servicer alone, and the Depositor, the Trustee and the
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other Servicer shall have no obligations, duties or liabilities
with respect to
a Subservicer including no obligation, duty or liability of the
Depositor and
Trustee or the Trust Fund to pay a Subservicer's fees and
expenses.
SECTION 3.03 [Reserved].
SECTION 3.04 Trustee to Act as Servicer.
(a) In the event that any Servicer shall for any reason
no longer be a Servicer hereunder (including by reason of an
Event of Default),
the Trustee or its successor shall thereupon assume all of the
rights and
obligations of such Servicer hereunder arising thereafter
(except that the
Trustee shall not be (i) liable for losses of such Servicer
pursuant to Section
3.09 hereof or any acts or omissions of the related predecessor
Servicer
hereunder, (ii) obligated to make Advances if it is prohibited
from doing so by
applicable law or (iii) deemed to have made any representations
and warranties
of such Servicer hereunder). Any such assumption shall be
subject to Section
7.02 hereof.
Each Servicer shall, upon request of the Trustee, but at the
expense of such Servicer, deliver to the assuming party all
documents and
records relating to each Subservicing Agreement or substitute
Subservicing
Agreement and the Mortgage Loans then being serviced thereunder
and hereunder by
such Servicer and an accounting of amounts collected or held by
it and otherwise
use its best efforts to effect the orderly and efficient
transfer of the
substitute Subservicing Agreement to the assuming party.
(b) [reserved].
SECTION 3.05 Collection of Mortgage Loans; Collection
Accounts; Certificate Account; Pre-Funding
Account.
(a) Continuously from the date hereof until the principal
and interest on all Mortgage Loans have been paid in full or
such Mortgage Loans
have become Liquidated Mortgage Loans, each Servicer shall
proceed in accordance
with Accepted Servicing Practices to collect all payments due
under each of the
related Mortgage Loans when the same shall become due and
payable to the extent
consistent with this Agreement and, consistent with such
standard, with respect
to Escrow Mortgage Loans, a Servicer shall ascertain and
estimate Escrow
Payments and all other charges that will become due and payable
with respect to
the Mortgage Loans and the Mortgaged Properties, to the end that
the
installments payable by the Mortgagors will be sufficient to pay
such charges as
and when they become due and payable. Consistent with the terms
of this
Agreement, each Servicer may also waive, modify or vary any term
of any Mortgage
Loan or consent to the postponement of strict compliance with
any such term or
in any manner grant indulgence to any Mortgagor if in such
Servicer's
determination such waiver, modification, postponement or
indulgence is not
materially adverse to the interests of the Certificateholders
(taking into
account any estimated Realized Loss that might result absent
such action);
provided, however, that such Servicer may not modify materially
or permit any
Subservicer to modify any Mortgage Loan (unless such Mortgage
Loan is in default
or, in the
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judgment of such Servicer, such default is reasonably
foreseeable), including
without limitation any modification that would change the
Mortgage Rate, forgive
the payment of any principal or interest (unless in connection
with the
liquidation of the related Mortgage Loan or except in connection
with Principal
Prepayments to the extent that such reamortization is not
inconsistent with the
terms of the Mortgage Loan), increase the principal balance, or
extend the final
maturity date of such Mortgage Loan, and, provided however, that
in no event
shall such modification reduce the interest rate on a Mortgage
Loan below the
rate at which the Servicing Fee with respect to such Mortgage
Loan accrues and
provided, further, that any such waiver, modification,
postponement or
indulgence granted to a Mortgagor by a Servicer in connection
with its servicing
of the related First Mortgage Loan shall not be considered
relevant to a
determination of whether such Servicer has acted consistently
with the terms and
standards of this Agreement, so long as in such Servicer's
determination such
action is not materially adverse to the interests of the
Certificateholders. In
the event of any such arrangement that permits the deferment of
principal and
interest payment on any Mortgage Loan, the related Servicer
shall make Advances
on the related Mortgage Loan in accordance with the provisions
of Section 4.01
during the scheduled period in accordance with the amortization
schedule of such
Mortgage Loan without modification thereof by reason of such
arrangements. Each
Servicer shall not be required to institute or join in
litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage
Note or
otherwise or against any public or governmental authority with
respect to a
taking or condemnation) if it reasonably believes that enforcing
the provision
of the Mortgage or other instrument pursuant to which such
payment is required
is prohibited by applicable law.
(b) Each Servicer shall segregate and hold all funds
collected and received pursuant to a Mortgage Loan separate and
apart from any
of its own funds and general assets and shall establish and
maintain one or more
Collection Accounts, each of which shall be an Eligible Account,
titled
"[Servicer's name], in trust for the Holders of Credit Suisse
First Boston
Mortgage Securities Corp., Home Equity Mortgage Pass-Through
Certificates,
Series 2005-2" or, if established and maintained by a
Subservicer on behalf of
the related Servicer, "[Subservicer's name], in trust for
[Servicer's name]" or
"[Subservicer's name], as agent, trustee and/or bailee of
principal and interest
custodial account for [Servicer's name], its successors and
assigns, for various
owners of interest in [Servicer's name] mortgage-backed pools".
Any funds
deposited in a Collection Account shall at all times be either
invested in
Eligible Investments or shall be fully insured to the full
extent permitted
under applicable law. Funds deposited in a Collection Account
may be drawn on by
the applicable Servicer in accordance with Section 3.08.
Each Servicer shall deposit in the Collection Account within
two Business Days of receipt and retain therein, the following
collections
remitted by Subservicers or payments received by such Servicer
and payments made
by such Servicer subsequent to the Cut-off Date, other than
Scheduled Payments
due on or before the Cut-off Date:
(i) all payments on account of principal on the Mortgage
Loans, including all Principal Prepayments;
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(ii) all payments on account of interest on the Mortgage
Loans adjusted to the per annum rate equal to the Mortgage Rate
reduced
by the related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the Mortgage Loans;
(iv) all Insurance Proceeds on the Mortgage Loans
including amounts required to be deposited pursuant to Section
3.09
(other than proceeds to be held in the Escrow Account and
applied to
the restoration or repair of the Mortgaged Property or released
to the
Mortgagor in accordance with Section 3.09);
(v) all Advances made by such Servicer pursuant to
Section 4.01;
(vi) with respect to each Principal Prepayment on the
Mortgage Loans, the Compensating Interest Payment, if any, for
the
related Prepayment Period;
(vii) any amounts required to be deposited by such Servicer
in respect of net monthly income from REO Property pursuant to
Section
3.11; and
(viii) any other amounts required to be deposited hereunder
including all collected Prepayment Charges.
The foregoing requirements for deposit into each Collection
Account shall be exclusive, it being understood and agreed that,
without
limiting the generality of the foregoing, Ancillary Income need
not be deposited
by such Servicer into such Collection Account. In addition,
notwithstanding the
provisions of this Section 3.05, each Servicer may deduct from
amounts received
by it, prior to deposit to the applicable Collection Account,
any portion of any
Scheduled Payment representing the applicable Servicing Fee. In
the event that a
Servicer shall remit any amount not required to be remitted, it
may at any time
withdraw or direct the institution maintaining the related
Collection Account to
withdraw such amount from such Collection Account, any provision
herein to the
contrary notwithstanding. Such withdrawal or direction may be
accomplished by
delivering written notice thereof to the Trustee or such other
institution
maintaining such Collection Account which describes the amounts
deposited in
error in such Collection Account. Each Servicer shall maintain
adequate records
with respect to all withdrawals made by it pursuant to this
Section. All funds
deposited in a Collection Account shall be held in trust for
the
Certificateholders until withdrawn in accordance with Section
3.08.
(c) On or prior to the Closing Date, the Trustee shall
establish and maintain, on behalf of the Certificateholders, the
Certificate
Account. The Trustee shall, promptly upon receipt, deposit in
the Certificate
Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer to the
Trustee pursuant to Section 3.08(viii);
(ii) any amount deposited by the Trustee pursuant to
Section 3.05(d) in connection with any losses on Eligible
Investments;
and
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(iii) any other amounts deposited hereunder which are
required to be deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trustee any
amount not required to be remitted, it may at any time direct
the Trustee to
withdraw such amount from the Certificate Account, any provision
herein to the
contrary notwithstanding. Such direction may be accomplished by
delivering an
Officer's Certificate to the Trustee which describes the amounts
deposited in
error in the Certificate Account. All funds deposited in the
Certificate Account
shall be held by the Trustee in trust for the Certificateholders
until disbursed
in accordance with this Agreement or withdrawn in accordance
with Section
3.08(b). In no event shall the Trustee incur liability for
withdrawals from the
Certificate Account at the direction of a Servicer.
(d) Each institution at which a Collection Account, the
Certificate Account or the Pre-Funding Account is maintained
shall either hold
such funds on deposit uninvested or shall invest the funds
therein as directed
in writing by the related Servicer (in the case of a Collection
Account), the
Trustee (in the case of the Certificate Account) or the
Depositor (in the case
of the Pre-Funding Account), in Eligible Investments, which
shall mature not
later than (i) in the case of a Collection Account, the second
Business Day
immediately preceding the related Distribution Date and (ii) in
the case of the
Certificate Account and the Pre-Funding Account, the Business
Day immediately
preceding the Distribution Date and, in each case, shall not be
sold or disposed
of prior to its maturity. All income and gain net of any losses
realized from
any such balances or investment of funds on deposit in a
Collection Account
shall be for the benefit of the related Servicer as servicing
compensation and
shall be remitted to it monthly as provided herein. The amount
of any realized
losses in a Collection Account incurred in any such account in
respect of any
such investments shall promptly be deposited by the related
Servicer in the
related Collection Account. The Trustee in its fiduciary
capacity shall not be
liable for the amount of any loss incurred in respect of any
investment or lack
of investment of funds held in a Collection Account or the
Pre-Funding Account.
All income and gain net of any losses realized from any such
investment of funds
on deposit in the Certificate Account shall be for the benefit
of the Trustee as
compensation and shall be remitted to it monthly as provided
herein. The amount
of any realized losses in the Certificate Account incurred in
any such account
in respect of any such investments shall promptly be deposited
by the Trustee in
the Certificate Account. All income and gain net of any losses
realized from any
such balances or investment of funds on deposit in the
Pre-Funding Account shall
be for the benefit of the Depositor and shall be remitted to it
monthly.
(e) Each Servicer shall give notice to the Trustee, the
Seller, each Rating Agency and the Depositor of any proposed
change of the
location of the related Collection Account prior to any change
thereof. The
Trustee shall give notice to each Servicer, the Seller, each
Rating Agency and
the Depositor of any proposed change of the location of the
Certificate Account
prior to any change thereof.
(f) The Trustee shall establish and maintain, on behalf
of the Certificateholders, the Pre-Funding Account. On the
Closing Date, the
Depositor shall remit the Pre-Funding Amount to the Trustee for
deposit in the
Pre-Funding Account. On each
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Subsequent Transfer Date, upon satisfaction of the conditions
for such
Subsequent Transfer Date set forth in Section 2.01(f), with
respect to the
related Subsequent Transfer Agreement, the Trustee shall remit
to the Depositor
the applicable Aggregate Subsequent Transfer Amount as payment
of the purchase
price for the related Subsequent Mortgage Loans.
If any funds remain in the Pre-Funding Account on June 24,
2005, to the extent they represent interest earnings on the
amounts originally
deposited into the Pre-Funding Account, the Trustee shall
distribute them to the
order of the Depositor. The remaining funds in the Pre-Funding
Account shall be
transferred to the Certificate Account to be included as part of
principal
distributions to the Certificates, in accordance with the
priorities set forth
herein, on the June 2005 Distribution Date.
SECTION 3.06 Establishment of and Deposits to Escrow
Accounts; Permitted Withdrawals from Escrow
Accounts; Payments of Taxes, Insurance and
Other Charges.
(a) To the extent required by the related Mortgage Note
and not in violation of current law, the applicable Servicer
shall segregate and
hold all funds collected and received pursuant to a Mortgage
Loan constituting
Escrow Payments separate and apart from any of its own funds and
general assets
and shall establish and maintain one or more Escrow Accounts,
each of which
shall be an Eligible Account, titled, "[Servicer's name], in
trust for "Credit
Suisse First Boston Mortgage Securities Corp., Home Equity
Mortgage Pass-Through
Certificates, Series 2005-2 and various mortgagors" or, if
established and
maintained by a Subservicer on behalf of the related Servicer,
"[Subservicer's
name], in trust for [Servicer's name]" or "[Subservicer's name],
as agent,
trustee and/or bailee of taxes and insurance custodial account
for [Servicer's
name], its successors and assigns, for various owners of
interest in [Servicer's
name] mortgage-backed pools". Funds deposited in the Escrow
Account may be drawn
on by the related Servicer in accordance with Section 3.06(b).
The creation of
any Escrow Account shall be evidenced by a certification in the
form of Exhibit
P-1 hereto, in the case of an account established with a
Servicer, or by a
letter agreement in the form of Exhibit P-2 hereto, in the case
of an account
held by a depository other than a Servicer. A copy of such
certification shall
be furnished to the Depositor and Trustee.
(b) Each Servicer shall deposit in its Escrow Account or
Accounts on a daily basis within one Business Day
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