CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL,
INC.,
Seller,
WELLS FARGO BANK,
N.A.,
Master Servicer, Servicer,
Back-Up Servicer and Trust Administrator,
SELECT PORTFOLIO SERVICING,
INC.,
Servicer,
WILSHIRE CREDIT
CORPORATION
Special Servicer,
and
U.S. BANK NATIONAL
ASSOCIATION,
Trustee
POOLING AND SERVICING
AGREEMENT
DATED AS OF JULY
1, 2005
relating to
ADJUSTABLE RATE MORTGAGE TRUST
2005-6A
ADJUSTABLE RATE MORTGAGE-BACKED
PASS-THROUGH CERTIFICATES,
SERIES 2005-6A
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.............................................................................................9
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES..........................................50
SECTION 2.01.
Conveyance of Trust
Fund..............................................................50
SECTION 2.02.
Acceptance by the
Trustee.............................................................54
SECTION 2.03.
Representations and Warranties of the Seller, Master Servicer and
Servicers...........55
SECTION 2.04.
Representations and Warranties of the Depositor as to the Mortgage
Loans..............58
SECTION 2.05.
Delivery of Opinion of Counsel in Connection with
Substitutions.......................58
SECTION 2.06.
Issuance of
Certificates..............................................................58
SECTION 2.07.
REMIC
Provisions......................................................................59
SECTION 2.08.
Covenants of the Master Servicer and each
Servicer....................................64
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.......................................................65
SECTION 3.01.
Servicers to Service Mortgage
Loans...................................................65
SECTION 3.02.
Subservicing; Enforcement of the Obligations of
Subservicers..........................67
SECTION 3.03.
Master Servicing by Master
Servicer...................................................69
SECTION 3.04.
Trustee to Act as Master Servicer or
Servicer.........................................69
SECTION 3.05.
Collection of Mortgage Loans; Collection Accounts; Certificate
Account................70
SECTION 3.06.
Establishment of and Deposits to Escrow Accounts; Permitted
Withdrawals
from Escrow Accounts; Payments of Taxes, Insurance and Other
Charges..................73
SECTION 3.07.
Access to Certain Documentation and Information Regarding
the Non-Designated Mortgage Loans;
Inspections........................................74
SECTION 3.08.
Permitted Withdrawals from the Collection Accounts and Certificate
Account............75
SECTION 3.09.
Maintenance of Hazard Insurance; Mortgage Impairment Insurance and
Mortgage
Guaranty Insurance Policy; Claims; Restoration of Mortgaged
Property..................77
SECTION 3.10.
Enforcement of Due on Sale Clauses; Assumption
Agreements.............................80
SECTION 3.11.
Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans.......81
SECTION 3.12.
Trustee and Trust Administrator to Cooperate; Release of Mortgage
Files...............84
SECTION 3.13.
Documents, Records and Funds in Possession of a Servicer to be Held
for the Trust.....85
SECTION 3.14.
Servicing Fee; Indemnification of Master
Servicer.....................................86
SECTION 3.15.
Access to Certain
Documentation.......................................................86
SECTION 3.16.
Annual Statement as to
Compliance.....................................................87
SECTION 3.17.
Annual Independent Public Accountants' Servicing Statement;
Financial Statements......87
SECTION 3.18.
Maintenance of Fidelity Bond and Errors and Omissions
Insurance.......................89
SECTION 3.19.
Special Serviced Mortgage
Loans.......................................................89
SECTION 3.20.
Indemnification of Servicers and Master
Servicer......................................90
SECTION 3.21.
Notification of
Adjustments...........................................................90
SECTION 3.22.
Designated Mortgage
Loans.............................................................90
SECTION 3.23.
Assigned Prepayment
Premiums..........................................................92
ARTICLE IV PAYMENTS AND STATEMENTS TO
CERTIFICATEHOLDERS.........................................................93
SECTION 4.01.
Priorities of
Distribution............................................................93
SECTION 4.02.
Allocation of
Losses..................................................................99
SECTION 4.03.
Recoveries...........................................................................100
SECTION 4.04.
Monthly Statements to
Certificateholders.............................................101
SECTION 4.05.
Servicer to
Cooperate................................................................101
SECTION 4.06.
Basis Risk Reserve Funds; Interest Rate Cap
Agreement................................102
ARTICLE V ADVANCES BY THE MASTER SERVICER AND
SERVICERS.........................................................104
SECTION 5.01.
Advances by the Master Servicer and
Servicers........................................104
ARTICLE VI THE
CERTIFICATES.....................................................................................105
SECTION 6.01.
The
Certificates.....................................................................105
SECTION 6.02.
Registration of Transfer and Exchange of
Certificates................................106
SECTION 6.03.
Mutilated, Destroyed, Lost or Stolen
Certificates....................................110
SECTION 6.04.
Persons Deemed
Owners................................................................111
SECTION 6.05.
Access to List of Certificateholders' Names and
Addresses............................111
SECTION 6.06.
Maintenance of Office or
Agency......................................................111
SECTION 6.07.
Book Entry
Certificates..............................................................111
SECTION 6.08.
Notices to Clearing
Agency...........................................................112
SECTION 6.09.
Definitive
Certificates..............................................................112
ARTICLE VII THE DEPOSITOR, THE SELLER, THE MASTER
SERVICER, THE SERVICERS AND THE SPECIAL SERVICER.............114
SECTION 7.01.
Liabilities of the Seller, the Depositor, the Master Servicer, the
Back-Up
Servicer, the Servicers and the Special
Servicer.....................................114
SECTION 7.02.
Merger or Consolidation of the Seller, the Depositor, the Back-Up
Servicer,
the Master Servicer, the Servicers or the Special
Servicer...........................114
SECTION 7.03.
Limitation on Liability of the Seller, the Depositor, the Master
Servicer,
the Back-Up Servicer, the Servicers, the Special Servicer and
Others.................115
SECTION 7.04.
Master Servicer and Servicer Not to Resign; Transfer of
Servicing....................115
SECTION 7.05.
Master Servicer, Seller and Servicers May Own
Certificates...........................117
SECTION 7.06.
Termination of Duties of the Back-Up
Servicer........................................117
ARTICLE VIII
DEFAULT............................................................................................118
SECTION 8.01.
Events of
Default....................................................................118
SECTION 8.02.
Master Servicer or Trust Administrator to Act; Appointment of
Successor..............121
SECTION 8.03.
Notification to
Certificateholders...................................................123
SECTION 8.04.
Waiver of Events of
Default..........................................................123
ARTICLE IX CONCERNING THE
TRUSTEE...............................................................................123
SECTION 9.01.
Duties of
Trustee....................................................................123
SECTION 9.02.
Certain Matters Affecting the
Trustee................................................125
SECTION 9.03.
Trustee Not Liable for Certificates or Mortgage
Loans................................126
SECTION 9.04.
Trustee May Own
Certificates.........................................................126
SECTION 9.05.
Trustee's Fees and
Expenses..........................................................127
SECTION 9.06.
Eligibility Requirements for
Trustee.................................................127
SECTION 9.07.
Resignation and Removal of
Trustee...................................................127
SECTION 9.08.
Successor
Trustee....................................................................128
SECTION 9.09.
Merger or Consolidation of
Trustee...................................................128
SECTION 9.10.
Appointment of Co-Trustee or Separate
Trustee........................................129
SECTION 9.11.
Office of the
Trustee................................................................130
ARTICLE X CONCERNING THE TRUST
ADMINISTRATOR....................................................................131
SECTION 10.01.
Duties of Trust
Administrator........................................................131
SECTION 10.02.
Certain Matters Affecting the Trust
Administrator....................................132
SECTION 10.03.
Trust Administrator Not Liable for Certificates or Mortgage
Loans....................134
SECTION 10.04.
Trust Administrator May Own
Certificates.............................................134
SECTION 10.05.
Trust Administrator's Fees and
Expenses..............................................134
SECTION 10.06.
Eligibility Requirements for Trust
Administrator.....................................135
SECTION 10.07.
Resignation and Removal of Trust
Administrator.......................................135
SECTION 10.08.
Successor Trust
Administrator........................................................136
SECTION 10.09.
Merger or Consolidation of Trust
Administrator.......................................137
SECTION 10.10.
Appointment of Co-Trust Administrator or Separate Trust
Administrator................137
SECTION 10.11.
Office of the Trust
Administrator....................................................138
SECTION 10.12.
Tax
Return...........................................................................138
SECTION 10.13.
Commission
Reporting.................................................................138
SECTION 10.14.
Determination of Certificate
Index...................................................141
ARTICLE XI
TERMINATION..........................................................................................142
SECTION 11.01.
Termination upon Liquidation or Purchase of all Mortgage
Loans.......................142
SECTION 11.02.
Procedure Upon Optional
Termination..................................................143
SECTION 11.03.
Additional Termination
Requirements..................................................144
ARTICLE XII MISCELLANEOUS
PROVISIONS............................................................................146
SECTION 12.01.
Amendment............................................................................146
SECTION 12.02.
Recordation of Agreement;
Counterparts...............................................148
SECTION 12.03.
Governing
Law........................................................................148
SECTION 12.04.
Intention of
Parties.................................................................148
SECTION 12.05.
Notices..............................................................................149
SECTION 12.06.
Severability of
Provisions...........................................................150
SECTION 12.07.
Limitation on Rights of
Certificateholders...........................................150
SECTION 12.08.
Certificates Nonassessable and Fully
Paid............................................151
SECTION 12.09.
Protection of
Assets.................................................................151
SECTION 12.10.
Non-Solicitation.....................................................................152
ARTICLE XIII SPS AND THE MASTER
SERVICER........................................................................153
SECTION 13.01.
Reports and
Notices..................................................................153
SECTION 13.02.
Master Servicer's Oversight With Respect to the SPS Mortgage
Loans...................154
SECTION 13.03.
Termination..........................................................................154
SECTION 13.04.
Liability and
Indemnification........................................................154
SECTION 13.05.
Confidentiality......................................................................154
EXHIBITS
Exhibit A:
Form of Class A
Certificate..........................................................A-1
Exhibit B:
Form of Class B
Certificate..........................................................B-1
Exhibit C:
Form of Class X
Certificate..........................................................C-1
Exhibit D-1:
Form of Class AR
Certificate.......................................................D-1-1
Exhibit D-2:
Form of Class AR-L
Certificate.....................................................D-2-1
Exhibit E:
Form of Class P
Certificate..........................................................E-1
Exhibit F:
Form of Servicer
Information.........................................................F-1
Exhibit G:
Form of Trust Receipt and Initial
Certification......................................G-1
Exhibit H:
Form of Trust Receipt and Final
Certification........................................H-1
Exhibit I:
Form of Request for
Release..........................................................I-1
Exhibit J:
Form of Transferor
Certificate.......................................................J-1
Exhibit K-1:
Form of Investment
Letter..........................................................K-1-1
Exhibit K-2:
Form of Rule 144A
Letter...........................................................K-2-1
Exhibit L:
Form of Investor Transfer Affidavit and
Agreement....................................L-1
Exhibit M:
Form of Transfer
Certificate.........................................................M-1
Exhibit N:
Form of SPS Mortgage Loans
Report..................................................N-1-1
Exhibit O:
Form of Foreclosure Settlement
Statement.............................................O-1
Exhibit P:
Form of Monthly Statement to
Certificateholders......................................P-1
Exhibit Q:
Form of Depositor Certification
.....................................................Q-1
Exhibit R:
Form of Trust Administrator Certification
...........................................R-1
Exhibit S-1:
Form of Master Servicer Certification
.............................................S-1-1
Exhibit S-2:
Form of Servicer Certification
....................................................S-2-1
Exhibit T:
Form of Certification Regarding Substitution of Defective Mortgage
Loans ............T-1
SCHEDULES
Schedule I:
Mortgage Loan
Schedule...............................................................I-1
Schedule IIA:
Representations and Warranties of Seller -
DLJMC...................................IIA-1
Schedule IIB:
Representations and Warranties of Master Servicer - Wells
Fargo....................IIB-1
Schedule IIC:
Representations and Warranties of Servicer -
SPS...................................IIC-1
Schedule IID:
Representations and Warranties of Servicer - Wells
Fargo...........................IID-1
Schedule IIE:
Representations and Warranties of Special Servicer -
Wilshire......................IIE-1
Schedule III:
Representations and Warranties of DLJMC - Mortgage
Loans...........................III-1
THIS POOLING AND SERVICING
AGREEMENT, dated as of July 1, 2005, is hereby executed by and
among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., as
depositor (the “Depositor”), DLJ MORTGAGE CAPITAL, INC.
(“DLJMC”), as seller (in such capacity, the
“Seller”), WELLS FARGO BANK, N.A., as master servicer
(in such capacity, the “Master Servicer”), as a
servicer (in such capacity, a “Servicer”), as back-up
servicer (in such capacity, the “Back-Up Servicer”) and
as trust administrator (in such capacity, the “Trust
Administrator”), SELECT PORTFOLIO SERVICING, INC.
(“SPS”), as a servicer (in such capacity, a
“Servicer”), WILSHIRE CREDIT CORPORATION, as special
servicer (in such capacity, the “Special Servicer”),
and U.S. BANK NATIONAL ASSOCIATION, as trustee (in such capacity,
the “Trustee”). Capitalized terms used in this
Agreement and not otherwise defined will have the meanings assigned
to them in Article I below.
PRELIMINARY
STATEMENT
The Depositor is the owner of the
Trust Fund (other than the Trust’s rights under the Interest
Rate Cap Agreement) that is hereby conveyed to the Trustee in
return for the Certificates. The Trust Fund (exclusive of any
entitlement to Assigned Prepayment Premiums, the Interest Rate Cap
Agreement and the assets held in the Basis Risk Reserve Funds) for
federal income tax purposes shall consist of three REMICs (referred
to as “REMIC I,” “REMIC II” and
“REMIC III”).
REMIC
I
As provided herein, the Trust
Administrator will make an election to treat the segregated pool of
assets consisting of the Group 1 Mortgage Loans and certain
other related assets (exclusive of any entitlement to Assigned
Prepayment Premiums, the Interest Rate Cap Agreement and the assets
held in the Basis Risk Reserve Funds) subject to this Agreement 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 I.” Component I
of the Class AR-L Certificates will represent the sole
class of “residual interests” in REMIC I for
purposes of the REMIC Provisions (as defined herein) under federal
income tax law. The following table irrevocably sets forth the
designation, Uncertificated REMIC I Pass-Through Rate or
Pass-Through Rate and initial Uncertificated Principal Balance or
Class Principal Balance for each of the “regular
interests” in REMIC I (the “REMIC I Regular
Interests”) and Component I of the Class AR-L
Certificates. The “latest possible maturity date”
(determined solely for purposes of satisfying Treasury Regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC I Regular
Interest and Component I of the Class AR-L Certificates shall be
the Final Maturity Date. None of the REMIC I Regular Interests
will be certificated.
Class Designation for each REMIC
I Regular Interest and Component I of the
Class AR-L Certificates
|
|
Uncertificated REMIC
I Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance or
Class Principal
Balance
|
|
|
LT1
|
Regular
|
Variable(1)
|
$ 193,931,930.66
|
November 2035
|
|
LT2
|
Regular
|
Variable(1)
|
$ 7,423.71
|
November 2035
|
|
LT3
|
Regular
|
(1)
|
$ 11,972.62
|
November 2035
|
|
LT4
|
Regular
|
Variable(1)
|
$ 11,972.62
|
November 2035
|
|
Component I of the
Class AR-L
|
Residual
|
Variable(2)
|
$ 50.00
|
November 2035
|
_______________
|
*
|
The Distribution Date in the specified month,
which is the fourth month following the month the latest maturing
Mortgage Loan in the related Loan Group matures.
|
|
(1)
|
Calculated as provided in the definition of
Uncertificated REMIC I Pass-Through Rate.
|
|
(2)
|
The initial Pass-Through Rate on Component I of
the Class AR-L Certificates is 4.4858% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on Component I
of the Class AR-L Certificates will equal the Net WAC Rate for Loan
Group 1 for that Distribution Date.
|
REMIC
II
As provided herein, the Trust
Administrator will make an election to treat the segregated pool of
assets consisting of the Group 2 Mortgage Loans and certain
other related assets (exclusive of any entitlement to Assigned
Prepayment Premiums, the Interest Rate Cap Agreement and the assets
held in the Basis Risk Reserve Funds) subject to this Agreement as
a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as “REMIC II.”
Component II of the Class AR-L Certificates will
represent the sole class of “residual interests”
in REMIC II for purposes of the REMIC Provisions under federal
income tax law. The following table irrevocably sets forth the
designation, Uncertificated REMIC II Pass-Through Rate or
Pass-Through Rate and initial Uncertificated Principal Balance or
Class Principal Balance for each of the “regular
interests” in REMIC II (the “REMIC II Regular
Interests”) and Component II of the Class AR-L Certificates.
The “latest possible maturity date” (determined solely
for purposes of satisfying Treasury Regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC II Regular
Interest and Component II of the Class AR-L Certificates shall be
the Final Maturity Date. None of the REMIC II Regular
Interests will be certificated.
Class Designation for each REMIC
II Regular Interest and Component I of the
Class AR-L Certificates
|
|
Uncertificated REMIC
II Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance or
Class Principal
Balance
|
|
|
LT5
|
Regular
|
Variable(1)
|
$270,837,142.14
|
November 2035
|
|
LT6
|
Regular
|
Variable(1)
|
$ 9,155.51
|
November 2035
|
|
LT7
|
Regular
|
(1)
|
$ 17,932.71
|
November 2035
|
|
LT8
|
Regular
|
Variable(1)
|
$ 17,932.71
|
November 2035
|
|
Component II of the
Class AR-L
|
Residual
|
Variable(2)
|
$ 0.00
|
November 2035
|
_______________
|
*
|
The Distribution Date in the specified month,
which is the fourth month following the month the latest maturing
Mortgage Loan in the related Loan Group matures.
|
|
|
(1)
|
Calculated as provided in the definition of
Uncertificated REMIC II Pass-Through Rate.
|
|
|
(2)
|
The initial Pass-Through Rate on Component II of
the Class AR-L Certificates is 4.4858% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on Component I
of the Class AR-L Certificates will equal the Net WAC Rate for Loan
Group 1 for that Distribution Date.
|
|
|
|
|
|
|
|
|
|
|
REMIC
III
As provided herein, the Trust
Administrator will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests and REMIC II
Regular Interests as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as
REMIC III. The Class AR Certificates will represent the
sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions under federal
income tax law. The following table irrevocably sets forth the
designation, Pass-Through Rate, aggregate Initial Class Principal
Balance or Class Notional Amount, and certain other features, for
each Class of Certificates comprising the interests
representing “regular interests” in REMIC III (the
“REMIC III Regular Interests”) and the Class AR
Certificates. The “latest possible maturity date”
(determined solely for purposes of satisfying Treasury Regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC III Regular
Interest and the Class AR Certificates shall be the Final Maturity
Date.
|
|
|
Pass-Through
Rate (per annum)
|
|
Integral Multiples
in Excess
of Minimum
|
|
Class 1-A-1
|
$ 33,500,000.00
|
Variable(1)
|
$25,000
|
$1
|
|
Class 1-A-2-1
|
$ 52,670,000.00
|
Variable(2)
|
$25,000
|
$1
|
|
Class 1-A-2-2
|
$ 5,850,000.00
|
Variable(3)
|
$25,000
|
$1
|
|
Class 1-A-3-1
|
$ 70,300,000.00
|
Variable(4)
|
$25,000
|
$1
|
|
Class 1-A-3-2
|
$ 17,580,000.00
|
Variable(5)
|
$25,000
|
$1
|
|
Class 1-X
|
Notional(6)
|
Variable(7)
|
$100,000
|
$1
|
|
Class 1-B-1
|
$ 5,725,000.00
|
Variable(8)
|
$25,000
|
$1
|
|
Class 1-B-2
|
$ 3,005,000.00
|
Variable(9)
|
$25,000
|
$1
|
|
Class 1-B-3
|
$ 1,940,000.00
|
Variable(10)
|
$25,000
|
$1
|
|
Class 1-B-4
|
$ 1,065,000.00
|
Variable(11)
|
$25,000
|
$1
|
|
Class 1-B-5
|
$ 1,360,000.00
|
Variable(12)
|
$25,000
|
$1
|
|
Class 1-B-6
|
$ 968,299.61
|
Variable(13)
|
$25,000
|
$1
|
|
Class 2-A-1
|
$174,260,000.00
|
Variable(14)
|
$25,000
|
$1
|
|
Class 2-A-2
|
$ 74,680,000.00
|
Variable(15)
|
$25,000
|
$1
|
|
Class 2-X
|
Notional(16)
|
Variable(17)
|
$100,000
|
$1
|
|
Class 2-B-1
|
$ 8,665,000.00
|
Variable(18)
|
$25,000
|
$1
|
|
Class 2-B-2
|
$ 4,470,000.00
|
Variable(19)
|
$25,000
|
$1
|
|
Class 2-B-3
|
$ 3,390,000.00
|
Variable(20)
|
$25,000
|
$1
|
|
Class 2-B-4
|
$ 2,170,000.00
|
Variable(21)
|
$25,000
|
$1
|
|
Class 2-B-5
|
$ 1,895,000.00
|
Variable(22)
|
$25,000
|
$1
|
|
Class 2-B-6
|
$ 1,352,163.06
|
Variable(23)
|
$25,000
|
$1
|
|
Class P
|
(24)
|
N/A
|
(25)
|
N/A
|
|
Class AR
|
$ 50.00
|
Variable(26)
|
(27)
|
N/A
|
_______________
|
(1)
|
The initial Pass-Through Rate on the
Class 1-A-1 Certificates is 3.7600% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.270% or (B) after the
applicable Optional Termination Date, 0.540%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
|
|
(2)
|
The initial Pass-Through Rate on the
Class 1-A-2-1 Certificates is 3.7500% per annum. After the
first Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.260% or (B) after the
applicable Optional Termination Date, 0.520%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
|
|
(3)
|
The initial Pass-Through Rate on the
Class 1-A-2-2 Certificates is 3.8000% per annum. After the
first Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.310% or (B) after the
applicable Optional Termination Date, 0.620%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
|
|
(4)
|
The initial Pass-Through Rate on the
Class 1-A-3-1 Certificates is 3.7400% per annum. After the
first Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that
|
Distribution Date plus (A) on and
prior to the applicable Optional Termination Date, 0.250% or (B)
after the applicable Optional Termination Date, 0.500%, (ii) the
Net WAC Rate for Loan Group 1 for that Distribution Date and
(iii) 11.00%.
|
(5)
|
The initial Pass-Through Rate on the
Class 1-A-3-2 Certificates is 3.8000% per annum. After the
first Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.310% or (B) after the
applicable Optional Termination Date, 0.620%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(6)
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These certificates will not receive any
distributions of principal, but will accrue interest on the
Class 1-X Notional Amount, which with respect to any date of
determination will equal the aggregate principal balance of the
Mortgage Loans in Loan Group 1.
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(7)
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The initial Pass-Through Rate on the
Class 1-X Certificates is approximately 1.1923% per annum.
After the first Distribution Date, the per annum Pass-Through Rate
on these certificates will be equal to the excess of the Net WAC
Rate for Loan Group 1 for that Distribution Date, over the
weighted average of the Pass-Through Rates of the Group 1
LIBOR Certificates. For federal income tax purposes the foregoing
rate is expressed as a rate per annum equal to the percentage
equivalent of a fraction, the numerator of which is the sum of (i)
the Uncertificated Pass-Through Rate for REMIC I Regular Interest
LT1 minus the related Marker Rate, applied to a notional amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LT1, (ii) the Uncertificated Pass-Through Rate for REMIC I
Regular Interest LT2 minus the related Marker Rate, applied to a
notional amount equal to the Uncertificated Principal Balance of
REMIC I Regular Interest LT2 and (iii) the Uncertificated
Pass-Through Rate for REMIC I Regular Interest LT4 minus twice the
related Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT4,
and the denominator of which is the aggregate Uncertificated
Principal Balance of the REMIC I Regular Interests.
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(8)
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The initial Pass-Through Rate on the
Class 1-B-1 Certificates is 3.9900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.500% or (B) after the
applicable Optional Termination Date, 1.000%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(9)
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The initial Pass-Through Rate on the
Class 1-B-2 Certificates is 4.2400% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.750% or (B) after the
applicable Optional Termination Date, 1.250%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(10)
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The initial Pass-Through Rate on the
Class 1-B-3 Certificates is 4.8900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.400% or (B) after the
applicable Optional Termination Date, 1.900%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(11)
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The initial Pass-Through Rate on the
Class 1-B-4 Certificates is 4.8900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.400% or (B) after the
applicable Optional Termination Date, 1.900%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(12)
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The initial Pass-Through Rate on the
Class 1-B-5 Certificates is 4.8900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.400% or (B) after the
applicable Optional Termination Date, 1.900%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(13)
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The initial Pass-Through Rate on the
Class 1-B-6 Certificates is 4.8900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.400% or (B) after the
applicable Optional Termination Date, 1.900%, (ii) the Net WAC Rate
for Loan Group 1 for that Distribution Date and (iii)
11.00%.
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(14)
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The initial Pass-Through Rate on the
Class 2-A-1 Certificates is 3.8000% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.310% or (B) after the
applicable Optional Termination Date, 0.620%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(15)
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The initial Pass-Through Rate on the
Class 2-A-2 Certificates is 3.9100% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.420% or (B) after the
applicable Optional Termination Date, 0.840%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(16)
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The Class 2-X Certificates will be
comprised of two REMIC III Regular Interests, designated as the
Class 2-X-IO Component and the Class 2-X-PO Component.
The Class 2-X-IO Component will not receive any distributions
of principal, but will accrue interest on the Class 2-X-IO
Notional Amount, which with respect to any date of determination
will equal the aggregate Class Principal Balance of the
Group 2 LIBOR Certificates. The Class Principal Balance of the
Class 2-X-PO Component shall initial equal zero and shall
thereafter be increased by the portion, if any, of the Net Deferred
Interest Allocation Amount allocated to the Class 2-X
Certificates.
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(17)
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The Pass-Through Rate on the Class 2-X-IO
Component will be equal to the product of (i) the excess of the
Group 2 Adjusted Net WAC Rate for that Distribution Date, over
the weighted average of the Pass-Through Rates of the Group 2
LIBOR Certificates and (ii) the actual number of days in the
related Accrual Period divided by 30. The Pass-Through Rate on the
Class 2-X-PO Component will equal the product of (i) the
Group 2 Adjusted Net WAC Rate for that Distribution
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Date and (ii) the actual number of
days in the related Accrual Period divided by 30. For federal
income tax purposes the Pass-Through Rate on the Class 2-X
Certificates is expressed as a rate per annum equal to the
percentage equivalent of a fraction, the numerator of which is the
sum of (i) the Uncertificated Pass-Through Rate for REMIC II
Regular Interest LT5 minus the related Marker Rate, applied to a
notional amount equal to the Uncertificated Principal Balance of
REMIC II Regular Interest LT5, (ii) the Uncertificated Pass-Through
Rate for REMIC II Regular Interest LT6 minus the related Marker
Rate, applied to a notional amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT6 and (iii) the
Uncertificated Pass-Through Rate for REMIC II Regular Interest LT8
minus twice the related Marker Rate, applied to a notional amount
equal to the Uncertificated Principal Balance of REMIC II Regular
Interest LT8, and the denominator of which is the aggregate
Uncertificated Principal Balance of the REMIC II Regular
Interests.
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(18)
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The initial Pass-Through Rate on the
Class 2-B-1 Certificates is 4.1500% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.660% or (B) after the
applicable Optional Termination Date, 1.160%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(19)
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The initial Pass-Through Rate on the
Class 2-B-2 Certificates is 4.3400% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 0.850% or (B) after the
applicable Optional Termination Date, 1.350%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(20)
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The initial Pass-Through Rate on the
Class 2-B-3 Certificates is 4.9900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.500% or (B) after the
applicable Optional Termination Date, 2.000%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(21)
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The initial Pass-Through Rate on the
Class 2-B-4 Certificates is 4.9900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.500% or (B) after the
applicable Optional Termination Date, 2.000%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(22)
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The initial Pass-Through Rate on the
Class 2-B-5 Certificates is 4.9900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.500% or (B) after the
applicable Optional Termination Date, 2.000%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(23)
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The initial Pass-Through Rate on the
Class 2-B-6 Certificates is 4.9900% per annum. After the first
Distribution Date, the per annum Pass-Through Rate on these
certificates will equal the least of (i) the sum of the Certificate
Index for that Distribution Date plus (A) on and prior to the
applicable Optional Termination Date, 1.500% or (B) after the
applicable Optional Termination Date, 2.000%, (ii) the Group 2
Adjusted Net WAC Rate for that Distribution Date and (iii)
10.50%.
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(24)
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The Class P Certificates will not have a
Class Principal Balance, will be entitled to distributions of
Assigned Prepayment Premiums only and such entitlement shall not be
an interest in any REMIC created hereunder. The Class P
Certificates shall have an initial notional balance of
$464,845,562.67.
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(25)
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The Class P Certificates will be issued in
certificated, fully-registered form in minimum denominations of 5%
of the Percentage Interest therein and increments of 1% in excess
thereof.
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(26)
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The initial Pass-Through Rate on the Class AR
Certificates is 4.4858% per annum. After the first Distribution
Date, the per annum Pass-Through Rate on the Class AR Certificates
will equal the Net WAC Rate for Loan Group 1 for that
Distribution Date.
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(27)
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The Class AR Certificates are issued in
minimum Percentage Interests of 20%.
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The foregoing REMIC structure is
intended to cause all of the cash from the Mortgage Loans to flow
through to REMIC III as cash flow on a REMIC Regular Interest,
without creating any shortfall—actual or potential (other
than for credit losses) to any REMIC Regular Interest. To the
extent that the structure is believed to diverge from such
intention the Trust Administrator shall resolve ambiguities to
accomplish such result and shall to the extent necessary rectify
any drafting errors or seek clarification to the structure without
Certificateholder approval (but with guidance of counsel) to
accomplish such intention.
Set forth below are designations of
Classes of Certificates to the categories used herein:
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Book-Entry
Certificates
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All
Classes of Certificates other than the Physical
Certificates.
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Class 1-A Certificates
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The
Class 1-A-1, Class 1-A-2-1, Class 1-A-2-2,
Class 1-A-3-1 and Class 1-A-3-2 Certificates.
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Class 1-B Certificates
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The
Class 1-B-1, Class 1-B-2, Class 1-B-3,
Class 1-B-4, Class 1-B-5 and Class 1-B-6
Certificates.
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Class 2-A Certificates
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The
Class 2-A-1 and Class 2-A-2 Certificates.
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Class 2-B Certificates
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The
Class 2-B-1, Class 2-B-2, Class 2-B-3,
Class 2-B-4, Class 2-B-5 and Class 2-B-6
Certificates.
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Component
Certificates
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The
Class 2-X Certificates.
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ERISA-Restricted Certificates
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Residual
Certificates and Private Certificates; and any Certificates that do
not satisfy the applicable ratings requirement under the
Underwriter’s Exemption.
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Group 1 Certificates
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The
Group 1 Senior Certificates and the Class 1-B
Certificates.
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Group 1 Senior Certificates
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The
Class 1-A, Class 1-X and Residual
Certificates.
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Group 2 Certificates
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The
Group 2 Senior Certificates and the Class 2-B
Certificates.
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Group 2 Senior Certificates
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The
Class 2-A and Class 2-X Certificates.
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LIBOR
Certificates
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The
Class 1-A, Class 2-A, Class 1-B and Class 2-B
Certificates.
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Notional
Amount Certificates
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The
Class 1-X Certificates and Class 2-X
Certificates.
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Offered
Certificates
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All
Classes of Certificates other than the Private
Certificates.
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Private
Certificates
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The
Class 1-B-4, Class 1-B-5, Class 1-B-6,
Class 2-B-4, Class 2-B-5, Class 2-B-6 and
Class P Certificates.
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Physical
Certificates
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The
Residual Certificates and the Private Certificates.
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Rating
Agencies
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Moody’s and S&P.
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Regular
Certificates
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All
Classes of Certificates other than the Residual
Certificates.
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Residual
Certificates
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The
Class AR and Class AR-L Certificates.
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Senior
Certificates
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The
Group 1 Senior Certificates and the Group 2 Senior
Certificates.
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Subordinate Certificates
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The Class 1-B Certificates and
the Class 2-B Certificates.
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All covenants and agreements made by
the Depositor herein are for the benefit and security of the
Certificateholders. The Depositor is entering into this Agreement,
and the Trustee is accepting the trusts created hereby and thereby,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
The parties hereto intend to effect
an absolute sale and assignment of the Mortgage Loans to the
Trustee for the benefit of Certificateholders under this Agreement.
However, the Depositor and the Seller will hereunder absolutely
assign and, as a precautionary matter grant a security interest, in
and to its rights, if any, in the related Mortgage Loans to the
Trustee on behalf of Certificateholders to ensure that the interest
of the Certificateholders hereunder in the Mortgage Loans is fully
protected.
W I T N E S S E T H T H A
T:
In consideration of the mutual
agreements herein contained, the Depositor, the Seller, the Master
Servicer, the Servicers, the Special Servicer, the Trustee and the
Trust Administrator agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have the following meanings:
1933 Act : The Securities Act of 1933, as
amended.
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.
Accrual Period
: For any Distribution Date and any
Class of Group 1 LIBOR Certificates, the thirty-day period
ending on the day immediately preceding that Distribution Date (or
in the case of the first Distribution Date, the period from the
Closing Date to the day immediately preceding the first
Distribution Date assuming a thirty-day month). For any
Distribution Date and any Class of Group 2 LIBOR Certificates,
the period beginning on the preceding Distribution Date (or the
Closing Date, in the case of the first Distribution Date) and
ending day immediately preceding that Distribution Date. For any
Distribution Date and the Class 1-X, Class 2-X, Class AR
and Class AR-L Certificates, the thirty-day period ending on the
last day of the preceding calendar month.
Advance : With respect to any Non-Designated Mortgage
Loan and any payment required to be made by a Servicer or the
Master Servicer, as applicable, with respect to any Distribution
Date pursuant to Section 5.01.
With respect to any Countrywide
Serviced Mortgage Loan, the payment required to be made by (i)
Countrywide pursuant to Subsection 11.19 of Exhibit 9 of the
Countrywide Underlying Servicing Agreement or (ii) the Master
Servicer with respect to any Distribution Date pursuant to
Section 3.22(b) of this Agreement.
Adverse REMIC Event
: As defined in
Section 2.07(f).
Adjustment Date
: With respect to each Mortgage
Loan, each adjustment date on which the Mortgage Rate thereon
changes pursuant to the related Mortgage Note. The first Adjustment
Date following the Cut-off Date as to each such Mortgage Loan is
set forth in the Mortgage Loan Schedule.
Aggregate Loan
Group Balance : With
respect to any Loan Group and as of any date of determination, will
be equal to the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group as of the first day of the month of
such date of determination.
Agreement : This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Ancillary Income
: All income derived from the
Non-Designated Mortgage Loans, other than Servicing Fees and Master
Servicing Fees, 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. Ancillary Income does not include any Assigned Prepayment
Premiums.
Appraised Value
: The appraised value of the
Mortgaged Property based upon the appraisal made for the originator
at the time of the origination of the related Mortgage Loan or the
sales price of the Mortgaged Property at the time of such
origination, whichever is less, or (i) with respect to any Mortgage
Loan that represents a refinancing other than a Streamlined
Mortgage Loan, the lower of the appraised value at origination or
the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing and (ii) with
respect to any Streamlined Mortgage Loan, the appraised value of
the Mortgaged Property based upon the appraisal made in connection
with the origination of the mortgage loan being
refinanced.
Assigned Prepayment
Premium : Any Prepayment
Premium on a Wells Fargo Serviced Mortgage Loan or a SPS Serviced
Mortgage Loan and any other Prepayment Premium on deposit in the
Certificate Account.
Assignment and Assumption
Agreement : That certain
assignment and assumption agreement dated as of July 1, 2005,
by and between DLJ Mortgage Capital, Inc., as assignor, and the
Depositor, as assignee, relating to the Mortgage Loans.
Assignment of Proprietary
Lease : With respect to a
Cooperative Loan, the assignment or mortgage of the related
Proprietary Lease from the Mortgagor to the originator of the
Cooperative Loan.
Available Distribution
Amount : With respect to
any Distribution Date and each Loan Group, the sum of:
(i) all
amounts in respect of Scheduled Payments (net of the related
Expense Fees) due on the related Due Date and received prior to the
related Determination Date on the related Mortgage Loans, together
with any Advances in respect thereof, less with respect to Loan
Group 2, Deferred Interest;
(ii) all
Insurance Proceeds (to the extent not applied to the restoration of
the Mortgaged Property or released to the Mortgagor in accordance
with the applicable Servicer’s Accepted Servicing Standards),
all Liquidation Proceeds received during the calendar month
preceding the month of that Distribution Date on the related
Mortgage Loans, in each case net of unreimbursed Liquidation
Expenses incurred with respect to such Mortgage Loans;
(iii) all
Principal Prepayments received during the related Prepayment Period
on the related Mortgage Loans, excluding Prepayment
Premiums;
(iv) amounts
received with respect to such Distribution Date as the Substitution
Adjustment Amount or Purchase Price in respect of a Mortgage Loan
in the related Loan Group repurchased by the Seller, purchased
by a Holder of a Subordinate Certificate pursuant to
Section 3.11(f) or purchased by the Special Servicer pursuant
to Section 3.11(g) as of such Distribution Date;
(v) any
amounts payable as Compensating Interest Payments by a Servicer
with respect to the related Mortgage Loans on such Distribution
Date;
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(vi) all
Recoveries, if any; and
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(vii) the
portion of the Mortgage Loan Purchase Price related to such Loan
Group paid in connection with an Optional Termination up to
the amount of the Par Value for such Loan Group;
in the case of
clauses (i) through (iv) above reduced by amounts in
reimbursement for Advances previously made and other amounts as to
which the Trustee, the Trust Administrator, a Servicer or the
Master Servicer is entitled to be reimbursed pursuant to
Section 3.08 in respect of the related Mortgage Loans or
otherwise.
Back-Up Servicer
: Wells Fargo Bank, National
Association, acting in its capacity as back-up servicer for the SPS
Serviced Loans hereunder, or its successors in interest, as
applicable.
Bankruptcy Code
: The United States Bankruptcy Code,
as amended from time to time (11 U.S.C. §§ 101 et
seq .).
Bankruptcy Coverage Termination
Date : The point in time
at which the Bankruptcy Loss Coverage Amount is reduced to
zero.
Bankruptcy Loss
: With respect to any Loan Group,
Realized Losses on the Mortgage Loans in that Loan
Group incurred as a result of a Deficient Valuation or Debt
Service Reduction.
Bankruptcy Loss Coverage
Amount : As of any
Determination Date and each Loan Group, the Bankruptcy Loss
Coverage Amount shall equal the Initial Bankruptcy Loss Coverage
Amount for such Loan Group as reduced by (i) the aggregate amount
of Bankruptcy Losses allocated to the related Subordinate
Certificates since the Cut-off Date and (ii) any permissible
reductions in such Bankruptcy Loss Coverage Amount as evidenced by
a letter of each Rating Agency to the Trust Administrator to the
effect that any such reduction will not result in a downgrading, or
otherwise adversely affect, of the then current ratings assigned to
such related Classes of Certificates rated by it.
Basis Risk Reserve
Funds : Collectively, the
Group 1 Basis Risk Reserve Fund and the Group 2 Basis
Risk Reserve Fund.
Basis Risk Shortfall
: For any Class of LIBOR
Certificates and any Distribution Date, the sum of (i) the excess,
if any, of (a) the related Current Interest calculated on the basis
of the least of (x) the applicable Certificate Index plus the
applicable Certificate Margin, (y) the Maximum Interest Rate and
(z) with respect to the Group 1 LIBOR Certificates, 11.00%,
and with respect to the Group 2 LIBOR Certificates, 10.50%,
over (b) the related Current Interest for the applicable
Distribution Date, (ii) any amount described in clause (i)
remaining unpaid from prior Distribution Dates, and (iii) interest
on the amount in clause (ii) for the related Accrual Period
calculated at a per annum rate equal to the least of (x) the
applicable Certificate Index plus the applicable Certificate
Margin, (y) the applicable Maximum Interest Rate and (z) with
respect to the Group 1 LIBOR Certificates, 11.00%, and with
respect to the Group 2 LIBOR Certificates, 10.50%.
Beneficial Holder
: A Person holding a beneficial
interest in any Certificate through a Participant or an Indirect
Participant or a Person holding a beneficial interest in any
Definitive Certificate.
Book-Entry
Certificates : As
specified in the Preliminary Statement.
Book-Entry Form
: Any Certificate held through the
facilities of the Depository.
Business Day
: Any day other than (i) a Saturday
or a Sunday, or (ii) a day on which banking institutions in New
York or the state in which the office of the Master Servicer or any
Servicer or the Corporate Trust Office of the Trustee or Trust
Administrator are located are authorized or obligated by law or
executive order to be closed.
Carryforward Interest
: For any Class of LIBOR
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 for such Class from 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
Accrual Period at the applicable Pass-Through Rate.
Cash Remittance Date
: With respect to any Distribution
Date and (A) SPS, the 7th calendar day preceding such
Distribution Date, or if such 7th calendar day is not a Business
Day, the Business Day immediately preceding such 7th calendar day
and (B) Wells Fargo, the Designated Servicers and the Special
Servicer, the 18th calendar day of the month in which the
Distribution Date occurs, or if such 18th calendar day is not a
Business Day, the Business Day immediately following such 18th
calendar day.
Certificate
: Any Certificates executed and
authenticated by the Trust Administrator on behalf of the Trustee
for the benefit of the Certificateholders in substantially the form
or forms attached as Exhibits A through E hereto.
Certificate Account
: The separate Eligible Account
created and maintained with the Trust Administrator, 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 Trust Administrator, as agent
for 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 Trust Administrator in
Eligible Investments and reinvestment earnings thereon (net of
investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts
permitted to be withdrawn pursuant to Section 3.08(b)) 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 (i) minus all distributions of
principal and allocations of Realized Losses, including Excess
Losses, previously made or allocated with respect thereto and, in
the case of the Class 1-A-2-2, Class 1-A-3-2 and
Class 2-A-2 Certificates and any Subordinate Certificates,
reduced by any such amounts allocated to such Class on prior
Distribution Dates pursuant to Section 4.02 and (ii) plus
the sum of (1) the amount of any increase to the Certificate
Balance of such Certificate pursuant to Section 4.03 and
(2) with respect to the Group 2 LIBOR Certificates and
the Class 2-X-PO Component of the Class 2-X Certificates,
the Certificate Balance of each such Class will be increased by the
Net Deferred Interest Allocation Amount for such Certificate for
such Distribution Date.
Certificate Group
: Any of Certificate Group 1 or
Certificate Group 2, as applicable.
Certificate
Group 1 : Any of the
Certificates with a Class designation beginning with
“1” and relating to Loan Group 1.
Certificate
Group 2 : Any of the
Certificates with a Class designation beginning with
“2” and relating to Loan Group 2.
Certificateholder
or Holder : The Person
in whose name a Certificate is registered in the Certificate
Register.
Certificate Index
: With respect to each Distribution
Date and the LIBOR Certificates, the rate for one month United
States dollar deposits quoted on Telerate Page 3750 as of 11:00
A.M., London time, on the related Interest Determination Date
relating to each Class of LIBOR Certificates. If such rate
does not appear on such page (or such other page as may replace
that page on that service, or if such service is no longer offered,
such other service for displaying one month LIBOR or comparable
rates as may be reasonably selected by the Trust Administrator
after consultation with DLJMC), the rate will be the related
Reference Bank Rate. If no such quotations can be obtained and no
related Reference Bank Rate is available, the Certificate Index
with respect to the LIBOR Certificates will be the Certificate
Index applicable to such Certificates on the preceding Distribution
Date.
On the Interest Determination Date
immediately preceding each Distribution Date, the Trust
Administrator shall determine each Certificate Index for the
Accrual Period commencing on such Distribution Date and inform the
Master Servicer and each Servicer of such rate.
Certificate Margin
: As to each Class of LIBOR
Certificates and any Distribution Date, the applicable amount set
forth in the footnotes to REMIC III in the Preliminary
Statement.
Certificate Register
: The register maintained pursuant
to Section 6.02(a) hereof.
Class : All Certificates bearing the same class
designation as set forth in the Preliminary Statement.
Class 1-X Notional
Amount : For any
Distribution Date, the aggregate Stated Principal Balance of the
Group 1 Mortgage Loans immediately prior to that Distribution
Date. The Class 1-X Notional Amount as of the Closing Date is
$193,963,400.
Class 2-X Notional
Amount : For any
Distribution Date, the aggregate Certificate Balance of the
Group 2 LIBOR Certificates immediately prior to that
Distribution Date. The Class 2-X Notional Amount as of the
Closing Date is $270,882,163.
Class B
Percentage : With respect
to any Distribution Date and each Loan Group, the aggregate
Class Principal Balance of the related Subordinate
Certificates immediately prior to such Distribution Date divided by
the Aggregate Loan Group Balance for such Loan Group as of the
first day of the related Collection Period (excluding any such
Mortgage Loans that were subject to a Payoff, the principal of
which was distributed on the Distribution Date preceding the
current Distribution Date).
Class Interest
Shortfall : With respect
to any Distribution Date and Class of Certificates, the amount
by which the amount described in clause (i) of the definition of
Interest Distribution Amount for such Class, exceeds the amount of
interest actually distributed on such Class on such
Distribution Date.
Class Notional
Amount : The
Class 1-X Notional Amount or Class 1-X Notional Amount,
as applicable.
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.
Class Unpaid Interest
Amounts : With respect to
any Distribution Date and Class of interest bearing
Group 1 and Group 2 Certificates, the amount by which the
aggregate Class Interest Shortfalls for such Class on
prior Distribution Dates exceeds the amount distributed on such
Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Interest Distribution Amount.
Clearing Agency
: An organization registered as a
“clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended, which initially shall
be DTC, the nominee of which is Cede & Co., as the registered
Holder of the Book Entry Certificates. The Clearing Agency shall at
all times be a “clearing corporation” as defined in
Section 8 102(a)(5) of the Uniform Commercial Code of the
State of New York.
Closing Date
: July 29, 2005.
Code : The Internal Revenue Code of 1986, as
amended.
Collection Account
: The accounts established and
maintained by a Servicer in accordance with
Section 3.05.
Collection 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.
Commencement of
Foreclosure : The first
official action required under local law to commence foreclosure
proceedings or to schedule a trustee’s sale under a deed of
trust, including: (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclose; or
(ii) in the case of a deed of trust, the posting, publishing,
filing or delivery of a notice of sale.
Compensating Interest
Payment : For any
Distribution Date and the SPS Serviced Mortgage Loans, the lesser
of (i) the aggregate Servicing Fee payable to SPS in respect of the
SPS Serviced Mortgage Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall allocable to Payoffs and
Curtailments with respect to the SPS Serviced Mortgage
Loans.
For any Distribution Date and the
Wells Fargo Serviced Mortgage Loans, the lesser of (i) one
twelfth (1/12) of a percentage (which ranges from 0.25% to 0.375%)
of the aggregate Stated Principal Balance of the Wells Fargo
Serviced Mortgage Loans, as of the Due Date in the month of such
Distribution Date, and (ii) the aggregate Prepayment Interest
Shortfall allocable to Payoffs and Curtailments with respect to the
Wells Fargo Serviced Mortgage Loans.
For any Distribution Date and the
Master Servicer, the Compensating Interest Payment shall be equal
to:
(a) with
respect to the SPS Serviced Mortgage Loans, the excess of (i) the
Compensating Interest Payment required to be remitted by SPS for
such Distribution Date over (ii) the Compensating Interest Payment
actually remitted by SPS for such Distribution Date;
(b) with
respect to the Wells Fargo Serviced Mortgage Loans, the excess of
(i) the Compensating Interest Payment required to be remitted by
Wells Fargo for such Distribution Date over (ii) the
Compensating Interest Payment actually remitted by Wells Fargo for
such Distribution Date; and
(c) with
respect to the Countrywide Serviced Mortgage Loans, the excess of
(i) the Compensating Interest (as defined in the Countrywide
Servicing Agreement) required to be remitted by Countrywide on the
Monthly Remittance Date (as defined in the Countrywide Servicing
Agreement) relating to such Distribution Date over (ii) the amount
of Compensating Interest (as defined in the Countrywide Servicing
Agreement) actually remitted by Countrywide
on the Monthly Remittance Date (as
defined in the Countrywide Servicing Agreement) relating to such
Distribution Date;
Component 1-X-A Distribution
Amount : For any
Distribution Date, an amount equal to the product of (i) the
Component 1-X-A Notional Amount, (ii) the Component 1-X-A
Pass-Through Rate and (iii) a fraction, expressed as a percentage,
the numerator of which is equal to 30 and the denominator of which
is equal to 360.
Component 1-X-A Notional
Amount : For any
Distribution Date, an amount equal to the aggregate Class Principal
Balance of the Class 1-A Certificates immediately prior to
that Distribution Date.
Component 1-X-A Pass-Through
Rate : For any
Distribution Date, a per annum rate equal to the excess, if any, of
the Net WAC Rate for the Group 1 Mortgage Loans for that
Distribution Date, over the weighted average of the Pass-Through
Rates of the Class 1-A Certificates for that Distribution
Date.
Component 1-X-B Distribution
Amount : For any
Distribution Date, an amount equal to the product of (i) the
Component 1-X-B Notional Amount, (ii) the Component 1-X-B
Pass-Through Rate and (iii) a fraction, expressed as a percentage,
the numerator of which is equal to 30 and the denominator of which
is equal to 360.
Component 1-X-B Notional
Amount : For any
Distribution Date, an amount equal to the aggregate Class Principal
Balance of the Class 1-B Certificates immediately prior to
that Distribution Date.
Component 1-X-B Pass-Through
Rate : For any
Distribution Date, a per annum rate equal to the excess, if any, of
the Net WAC Rate for the Group 1 Mortgage Loans for that
Distribution Date, over the weighted average of the Pass-Through
Rates of the Class 1-B Certificates for that Distribution
Date.
Component 2-X-A Distribution
Amount : For any
Distribution Date, an amount equal to the product of (i) the
Component 2-X-A Notional Amount, (ii) the Component 2-X-A
Pass-Through Rate and (iii) a fraction, expressed as a percentage,
the numerator of which is equal to the actual number of days in the
related Accrual Period and the denominator of which is equal to
360.
Component 2-X-A Notional
Amount : For any
Distribution Date, an amount equal to the aggregate Class Principal
Balance of the Class 2-A Certificates immediately prior to
that Distribution Date.
Component 2-X-A Pass-Through
Rate : For any
Distribution Date, a per annum rate equal to the excess, if any, of
the Group 2 Adjusted Net WAC Rate for that Distribution Date,
over the weighted average of the Pass-Through Rates of the
Class 2-A Certificates for that Distribution Date.
Component 2-X-B Distribution
Amount : For any
Distribution Date, an amount equal to the product of (i) the
Component 2-X-B Notional Amount, (ii) the Component 2-X-B
Pass-Through Rate and (iii) a fraction, expressed as a percentage,
the numerator of which is equal to the actual number of days in the
related Accrual Period and the denominator of which is equal to
360.
Component 2-X-B Notional
Amount : For any
Distribution Date, an amount equal to the aggregate Class Principal
Balance of the Class 2-B Certificates immediately prior to
that Distribution Date.
Component 2-X-B Pass-Through
Rate : For any
Distribution Date, a per annum rate equal to the excess, if any, of
the Group 2 Adjusted Net WAC Rate for that Distribution Date,
over the weighted average of the Pass-Through Rates of the
Class 2-B Certificates for that Distribution Date.
Cooperative
Corporation : With
respect to any Cooperative Loan, the cooperative apartment
corporation that holds legal title to the related Cooperative
Property and grants occupancy rights to units therein to
stockholders through Proprietary Leases or similar
arrangements.
Cooperative Lien
Search : A search for (a)
federal tax liens, mechanics’ liens, lis pendens, judgments
of record or otherwise against (i) the Cooperative Corporation and
(ii) the seller of the Cooperative Unit, (b) filings of Financing
Statements and (c) the deed of the Cooperative Property into the
Cooperative Corporation.
Cooperative Loan
: A Mortgage Loan that is secured by
a first lien on and a perfected security interest in Cooperative
Shares and the related Proprietary Lease granting exclusive rights
to occupy the related Cooperative Unit in the building owned by the
related Cooperative Corporation.
Cooperative Property
: With respect to any Cooperative
Loan, all real property and improvements thereto and rights therein
and thereto owned by a Cooperative Corporation including without
limitation the land, separate dwelling units and all common
elements.
Cooperative Shares
: With respect to any Cooperative
Loan, the shares of stock issued by a Cooperative Corporation and
allocated to a Cooperative Unit and represented by stock
certificates.
Cooperative Unit
: With respect to any Cooperative
Loan, a specific unit in a Cooperative Property.
Corporate Trust Office
: With respect to the Trustee, the
designated office of the Trustee 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 60 Livingston Avenue, St. Paul, Minnesota
55107, Attention: Corporate Trust—Structured Finance. With
respect to the Trust Administrator, the designated office of the
Trust Administrator 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 9062 Old Annapolis Road, Columbia, MD
21045, Attention: CSFB ARMT 2005-6A, except for purposes of
Section 6.06 and certificate transfer purposes, such term
shall mean the office or agency of the Trust Administrator located
at Wells Fargo Bank, N.A., 6th Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: CSFB ARMT
2005-6A.
Countrywide
: Countrywide Home Loans Servicing
LP, and its successors and assigns.
Countrywide Serviced Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule, for which
Countrywide is the applicable Designated Servicer.
Countrywide Servicing
Agreement : That certain
Reconstituted Servicing Agreement dated as of July 1, 2005
among DLJMC, Countrywide and the Master Servicer, and acknowledged
by the Trustee and the Trust Administrator.
Countrywide Underlying Servicing
Agreement : The
“Servicing Agreement” referred to in the Countrywide
Reconstituted Servicing Agreement.
Current Interest
: For any Class of Group 1
LIBOR Certificates and any Distribution Date, the amount of
interest accruing at the applicable Pass-Through Rate on the
related Class Principal Balance of such Class during the
related Accrual Period and for any Class of Group 2 LIBOR
Certificates and any Distribution Date, the amount of interest
accruing at the least of (i) the sum of the Certificate Index for
that Distribution Date plus the related Certificate Margin for that
Distribution Date, (ii) the Group 2 Net WAC Rate for that
Distribution Date and (iii) 10.50%; provided , that as to
each Class of LIBOR Certificates the Current Interest shall be
reduced by a pro rata portion of any Class Interest
Shortfalls.
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
: An agreement, dated as of the date
hereof, among a custodian, the Trustee and the Trust Administrator,
pursuant to which such custodian agrees to hold any of the
documents or instruments referred to in Section 2.01 of this
Agreement as agent for the Trustee. As of the date hereof, the
Custodian shall act pursuant to the LaSalle Custodial
Agreement.
Custodian : A custodian which is appointed pursuant to a
Custodial Agreement. Any Custodian so appointed shall act as agent
on behalf of the Trustee, and shall be compensated by the Trust
Administrator or as otherwise specified therein. Initially, LaSalle
shall serve as Custodian for all of the Mortgage Loans.
Cut-off Date
: July 1, 2005.
Cut-off Date Principal
Balance : With respect to
any Mortgage Loan, the Stated Principal Balance thereof as of the
close of business on the Cut-off Date.
Data Remittance Date
: With respect to any Distribution
Date and Wells Fargo or SPS, the 10th calendar day of the month in
which such Distribution Date occurs, or if such 10th day is not a
Business Day, the Business Day immediately following such 10th
day.
Debt Service Reduction
: With respect to a Mortgage Loan in
Loan Group 1 or Loan Group 2, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final and
non appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness
of principal.
Debt Service Reduction Mortgage
Loan : Any Mortgage Loan
that became the subject of a Debt Service Reduction.
Deferred Interest
: For any Distribution Date and each
Group 2 Mortgage Loan, an amount equal to the excess, if any,
of the amount of interest accrued on such Mortgage Loan during the
related due period, over the Scheduled Payment due on the related
Due Date.
Deficient Valuation
: With respect to any Mortgage Loan
in Loan Group 1 or Loan Group 2, a valuation by a court
of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under the Mortgage
Loan, or that results in a permanent
forgiveness of principal, which
valuation in either case results from a proceeding under the
Bankruptcy Code.
Definitive Certificate
: As defined in
Section 6.07.
Deleted Mortgage Loan
: As defined in
Section 2.03.
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 Agreement
: The Letter of Representation dated
as of the Closing Date by and among DTC, the Depositor and the
Trust Administrator for the benefit of the Trustee.
Designated Mortgage
Loans : The Countrywide
Serviced Mortgage Loans, unless any such Mortgage Loan is no longer
serviced by Countrywide under the Countrywide Servicing
Agreement.
Designated Servicer
: Countrywide.
Designated Servicing
Agreements : The
Countrywide Reconstituted Servicing Agreement.
Determination Date
: With respect to each Distribution
Date and (i) each Servicer (other than Wells Fargo), the 10th day
of the calendar month in which such Distribution Date occurs or, if
such 10th day is not a Business Day, the Business Day immediately
succeeding such Business Day and (ii) Wells Fargo, the
Business Day immediately preceding the related Cash Remittance
Date.
Disqualified
Organization : Any
organization defined as a “disqualified organization”
under Section 860E(e)(5) of the Code, which includes any of
the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are
subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed
by Chapter 1 of the Code (including the tax imposed by
Section 511 of the Code on unrelated business taxable income),
(iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an “electing
large partnership” within the meaning of Section 775 of
the Code, and (vi) any other Person so designated by the Trust
Administrator based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class AR or Class AR-L
Certificate by such Person may cause the REMIC or any Person having
an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class AR or Class AR-L
Certificate to such Person. The terms “United States,”
“State” and “international organization”
shall have the meanings set forth in Section 7701 of the Code
or successor provisions.
Distribution Date
: The 25th day of any month, or if
such 25th day is not a Business Day, the Business Day immediately
following such 25th day, commencing in August 2005.
DLJMC : DLJ Mortgage Capital, Inc., a Delaware
corporation, and its successors and assigns.
DTC : The Depository Trust Company.
Due Date : With respect to each Mortgage Loan and any
Distribution Date, the date on which Scheduled Payments on such
Mortgage Loan are due which is either the first day of the month of
such Distribution Date, or if Scheduled Payments on such Mortgage
Loan are due on a day other than the first day of the month, the
date in the calendar month immediately preceding the Distribution
Date on which such Scheduled Payments are due, exclusive of any
days of grace.
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 each Rating
Agency in its highest short term rating category, or (iii) a
segregated trust account or accounts (which shall be a
“special deposit account”) maintained with the Trustee,
the Trust Administrator or any other federal or state chartered
depository institution or trust company, acting in its fiduciary
capacity, in a manner acceptable to the Trustee, the Trust
Administrator and the Rating Agencies. Eligible Accounts may bear
interest.
Eligible Institution
: An institution having the highest
short term debt rating, and one of the two highest long term debt
ratings of the Rating Agencies or the approval of the Rating
Agencies.
Eligible Investments
: Any one or more of the obligations
and securities listed below:
1. 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; the FHLMC, FNMA,
the Federal Home Loan Banks or any agency or instrumentality of the
United States of America rated AA (or the equivalent) or higher by
the Rating Agencies;
2. 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;
3. 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 trust company (acting as a principal) in
the highest rated category by the Rating Agencies; 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 or the
Trust Administrator in exchange for such collateral, and (C) be
delivered to the Trustee or the Trust Administrator or, if the
Trustee or the Trust Administrator, as applicable, is supplying the
collateral, an agent for the Trustee or the Trust Administrator, in
such a manner as to accomplish perfection of a security interest in
the collateral by possession of certificated securities;
4. 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;
5. 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 each of the Rating Agencies at
the time of such investment;
6. 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;
7. money
market funds (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 one of the two
highest available rating categories of 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 the Master Servicer, a Servicer, the Trustee
or the Trust Administrator and any such funds that are managed by
the Master Servicer, a Servicer, the Trustee or the Trust
Administrator or their respective Affiliates or for the Master
Servicer, a Servicer, the Trustee or the Trust Administrator or any
Affiliate of such Person acts as advisor, as long as such money
market funds satisfy the criteria of this subparagraph 7;
and
8. 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.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA-Qualifying
Underwriting : A best
efforts or firm commitment underwriting or private placement that
meets the requirements (without regard to the ratings requirements)
of an Underwriter’s Exemption.
ERISA Restricted
Certificate : As
specified in the Preliminary Statement.
Escrow Account
: The separate account or accounts
created and maintained by a Servicer pursuant to
Section 3.06.
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 8.01
hereof.
Excess Loss
: The amount of any (i) Fraud Loss
in excess of the Fraud Loss Coverage Amount on a Mortgage Loan in
Loan Group 1 or Loan Group 2 realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss in
excess of the Special Hazard Loss Coverage Amount on a Mortgage
Loan in Loan Group 1 or Loan Group 2 realized after the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss
in excess of the Bankruptcy Loss Coverage Amount on a Mortgage Loan
in Loan Group 1 or Loan Group 2 realized after the
Bankruptcy Coverage Termination Date.
Expense Fee Rate
: As to each Mortgage Loan, the sum
of the related Servicing Fee Rate, the Trust Administrator Fee
Rate, if applicable, and the rate at which the premium on a Lender
Paid Mortgage Guaranty Insurance Policy is calculated, if
applicable.
Expense Fees
: As to each Mortgage Loan and
Distribution Date, the sum of the related Servicing Fee, the Trust
Administrator Fee, if applicable, and any premium on any Lender
Paid Mortgage Guaranty Insurance Policy, if applicable.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
FHLMC : The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing
under Title III of the Emergency Home Finance Act of 1970, as
amended, or any successor thereto.
Financing Statement
: A financing statement, as
applicable, filed pursuant to the Uniform Commercial Code to
perfect a security interest in the Cooperative Shares and Pledge
Instruments.
FNMA : The Federal National Mortgage Association, a
federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
Fraud Loan
: A Liquidated Mortgage Loan in Loan
Group 1 or Loan Group 2 as to which a Fraud Loss has
occurred.
Fraud Loss Coverage
Amount : For each Loan
Group, the aggregate amount of Fraud Losses that are allocated
solely to the related Subordinate Certificates, as of the Closing
Date, with respect to Loan Group 1, an amount equal to
$5,818,902 and with respect to Loan Group 2, an
amount
equal to $8,126,465, subject to
reduction from time to time by the amount of Fraud Losses allocated
to the related Subordinate Certificates. In addition, (a) on each
anniversary prior to the fifth anniversary of the Cut-off Date, the
Fraud Loss Coverage Amount will be reduced to an amount equal to
the lesser of (A) 1.00% of the related Aggregate Loan Group
Balance as of such date, and (B) the excess of the Fraud Loss
Coverage Amount as of the preceding anniversary of the Cut-off Date
over the cumulative amount of Fraud Losses on the Mortgage Loans in
such Loan Group allocated to the related Subordinate
Certificates since such preceding anniversary or the Cut-off Date,
and (b) on the fifth anniversary of the Cut-off Date, zero. The
Fraud Loss Coverage Amount may be reduced below the amount set
forth above for any Distribution Date with the consent of the
Rating Agencies as evidenced by a letter of each Rating Agency to
the Trust Administrator to the effect that any such reduction will
not result in a downgrading of the current ratings assigned to such
Classes of Certificates rated by it.
Fraud Loss Coverage Termination
Date : The point in time
at which the applicable Fraud Loss Coverage Amount is reduced to
zero.
Fraud Losses
: Realized Losses on the Liquidated
Mortgage Loans in Loan Group 1 and Loan Group 2 as to
which a loss is sustained by reason of a default arising from
fraud, dishonesty or misrepresentation in connection with the
related Mortgage Loan, including a loss by reason of the denial of
coverage under any related Mortgage Guaranty Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Gross Margin
: With respect to any Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note
and the Mortgage Loan Schedule that is added to the Index on each
Adjustment Date in accordance with the terms of the related
Mortgage Note to determine the new Mortgage Rate for such Mortgage
Loan.
Group : When used with respect to the Mortgage Loans,
any of Loan Group 1 or Loan Group 2, or with respect to
the Certificates, the Class or Classes of Certificates that
relate to the corresponding Group.
Group 1
: With respect to the Mortgage
Loans, the pool of adjustable rate Mortgage Loans identified in the
related Mortgage Loan Schedule as having been assigned to
Group 1 or with respect to the Certificates, the
Class 1-A, Class 1-X, Class 1-B, Class AR and
Class AR-L Certificates.
Group 1 Basis Risk Reserve
Fund : The separate
Eligible Account created and initially maintained by the Trust
Administrator pursuant to Section 4.06 in the name of the
Trust Administrator for the benefit of the Certificateholders and
designated “Wells Fargo Bank, N.A. in trust for registered
holders of Adjustable Rate Mortgage Trust 2005-6A, Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2005-6A,
Group 1 LIBOR Certificates.” Funds in the Group 1
Basis Risk Reserve Fund shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement. The Group 1 Basis Risk Reserve Fund will not be an
asset of any REMIC. Ownership of the Group 1 Basis Risk
Reserve Fund is evidenced by the Class 1-X
Certificates.
Group 1 Senior Liquidation
Amount : With respect to
any Distribution Date, the aggregate, for each Mortgage Loan in
Loan Group 1 which became a Liquidated Mortgage Loan during
the prior calendar month, of the lesser of (i) the Group 1
Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the applicable Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage
Loan.
Group 1 Senior
Percentage : With respect
to any Distribution Date, the percentage equivalent of a fraction
the numerator of which is the aggregate Class Principal
Balance of the Group 1
Certificates immediately prior to
such Distribution Date and the denominator of which is the
aggregate of the Stated Principal Balances of the Mortgage Loans in
Loan Group 1 as of the first day of the related Collection
Period (excluding any Group 1 Mortgage Loans that were subject
to a Payoff, the principal of which was distributed on the
Distribution Date preceding the current Distribution Date);
provided , however , in no event will the
Group 1 Senior Percentage exceed 100%.
Group 1 Senior Principal
Distribution Amount :
With respect to any Distribution Date, the sum of (i) the
Group 1 Senior Percentage of the Principal Payment Amount for
Loan Group 1, (ii) the applicable Senior Prepayment Percentage
of the Principal Prepayment Amount for Loan Group 1, and (iii)
the Group 1 Senior Liquidation Amount.
Group 1 Subordinate
Percentage : For any
Distribution Date, the excess of 100% over the Group 1 Senior
Percentage.
Group 2
: With respect to the Mortgage
Loans, the pool of adjustable rate Mortgage Loans identified in the
related Mortgage Loan Schedule as having been assigned to
Group 2 or with respect to the Certificates, the
Class 2-A, Class 2-X and Class 2-B
Certificates.
Group 2 Adjusted Net WAC
Rate : For any
Distribution Date and Loan Group 2, a per annum rate equal to
the excess, if any, of (i) the Net WAC Rate for Loan Group 2
for that distribution Date, over (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the product of
(A) the Net Deferred Interest for that Distribution Date and
(B) a fraction, the numerator of which is 360 and the denominator
of which is the actual number of days in the related Accrual Period
and the denominator or which is equal to the aggregate Stated
Principal Balance of the Group 2 Mortgage Loans as of the
immediately preceding Distribution Date.
Group 2 Basis Risk Reserve
Fund : The separate
Eligible Account created and initially maintained by the Trust
Administrator pursuant to Section 4.06 in the name of the
Trust Administrator for the benefit of the Certificateholders and
designated “Wells Fargo Bank, N.A. in trust for registered
holders of Adjustable Rate Mortgage Trust 2005-6A, Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2005-6A,
Group 2 LIBOR Certificates.” Funds in the Group 2
Basis Risk Reserve Fund shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement. The Group 2 Basis Risk Reserve Fund will not be an
asset of any REMIC. Ownership of the Group 2 Basis Risk
Reserve Fund is evidenced by the Class 2-X
Certificates.
Group 2 Senior Liquidation
Amount : With respect to
any Distribution Date, the aggregate, for each Mortgage Loan in
Loan Group 2 which became a Liquidated Mortgage Loan during
the prior calendar month, of the lesser of (i) the Group 2
Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the applicable Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage
Loan.
Group 2 Senior
Percentage : With respect
to any Distribution Date, the percentage equivalent of a fraction
the numerator of which is the aggregate Class Principal
Balance of the Group 2 Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of
the Stated Principal Balances of the Mortgage Loans in Loan
Group 2 as of the first day of the related Collection Period
(excluding any Group 2 Mortgage Loans that were subject to a
Payoff, the principal of which was distributed on the Distribution
Date preceding the current Distribution Date); provided ,
however , in no event will the Group 2 Senior
Percentage exceed 100%.
Group 2 Senior Principal
Distribution Amount :
With respect to any Distribution Date, the sum of (i) the
Group 2 Senior Percentage of the Principal Payment Amount for
Loan Group 2, (ii) the
applicable Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan
Group 2, and (iii) the Group 2 Senior Liquidation
Amount.
Group 2 Subordinate
Percentage : For any
Distribution Date, the excess of 100% over the Group 2 Senior
Percentage.
Index : With respect to any Mortgage Loan and each
related Adjustment Date, the index as specified in the related
Mortgage Note.
Indirect Participants
: Entities, such as banks, brokers,
dealers and trust companies, that clear through or maintain a
custodial relationship with a Participant, either directly or
indirectly.
Initial Bankruptcy Loss Coverage
Amount : With respect to
each Loan Group, an amount equal to $150,000.
Initial Class Principal
Balance : As set forth in
the Preliminary Statement.
Insurance Policy
: With respect to any Mortgage Loan
included in the Trust Fund, any Mortgage Guaranty Insurance Policy,
any standard hazard insurance policy, flood insurance policy or
title insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds
: Proceeds of any primary mortgage
guaranty insurance policies, including, without limitation, any
other Insurance Policies with respect to the Mortgage Loans, to the
extent such proceeds are not applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in
accordance with the related Servicer’s or Designated
Servicer’s normal servicing procedures.
Interest Determination
Date : With respect to
the LIBOR Certificates and for each Accrual Period, the second
LIBOR Business Day preceding the commencement of such Accrual
Period.
Interest Distribution
Amount : With respect to
any Distribution Date and interest bearing Class of
Certificates, the sum of (i) one month’s interest accrued
during the related Accrual Period at the applicable Pass-Through
Rate for such Class on the related Class Principal
Balance or Class Notional Amount, as applicable, subject to
reduction pursuant to Section 4.01(I)(B), and (ii) any
Class Unpaid Interest Amounts for such Class and
Distribution Date.
Interest Rate Cap
Agreement : The interest
rate cap agreement relating to the Class 2-A Certificates
consisting of the ISDA Master Agreement, Credit Support Annex and
Schedule dated as of the Closing Date and the Confirmation thereto,
between the Trustee on behalf of the Trust and the Interest Rate
Cap Counterparty, as such agreement may be amended and supplemented
in accordance with its terms and any replacement Interest Rate Cap
Agreement acceptable to the Depositor and the Trustee.
Interest Rate Cap Agreement
Notional Amount : The
relevant notional amount for a Interest Rate Cap Agreement Payment
Date pursuant to the terms of the Interest Rate Cap
Agreement.
Interest Rate Cap Agreement
Payment Date : With
respect to the Interest Rate Cap Agreement, the 25th day of each
month, beginning in August 2005, to and including the Distribution
Date in April 2017, subject to the modified following business day
convention (within the meaning of the 2000 ISDA Definitions). After
the related Termination Date, no payments shall be made under the
related Interest Rate Cap Agreement.
Interest Rate Cap
Counterparty : Credit
Suisse First Boston International, or any successor in interest
thereto under the Interest Rate Cap Agreement.
LaSalle : LaSalle Bank, National Association.
LaSalle Bank Custodial
Agreement : That certain
Custodial Agreement dated as of July 1, 2005 among LaSalle,
the Trustee and the Trust Administrator.
Lender Paid Mortgage Guaranty
Insurance Policy : Any
lender paid Mortgage Guaranty Insurance Policy.
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
: As specified in the Preliminary
Statement.
Liquidated Mortgage
Loan : With respect to
any Distribution Date, a defaulted Mortgage Loan (including any REO
Property) which was liquidated in the calendar month preceding the
month of such Distribution Date and as to which a Servicer, has
determined (with respect to the Non-Designated Mortgage Loans, in
accordance with this Agreement, or with respect to the Designated
Mortgage Loans, in accordance with the related Designated Servicing
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, whether from
Insurance Proceeds, Liquidation Proceeds or otherwise.
Liquidation Expenses
: Customary and reasonable
“out of pocket” expenses incurred by a Servicer (or the
related Subservicer) in connection with the liquidation of any
defaulted Mortgage Loan and not recovered by the related Servicer
(or the related Subservicer) under a Mortgage Guaranty Insurance
Policy for reasons other than such Servicer’s failure to
comply with Section 3.09 hereof, such expenses including,
without limitation, legal fees and expenses, any unreimbursed
amount expended by a Servicer pursuant to Section 3.11 hereof
respecting the related Mortgage and any related and unreimbursed
expenditures for real estate property taxes or for property
restoration or preservation to the extent not previously reimbursed
under any hazard insurance policy for reasons other than such
Servicer’s failure to comply with Section 3.11
hereof.
Liquidation Principal
: With respect to any Distribution
Date and a Loan Group, the principal portion of Liquidation
Proceeds received with respect to each Mortgage Loan in that Loan
Group, but not in excess of the principal balance of such Mortgage
Loan, which became a Liquidated Mortgage Loan (but not in excess of
the principal balance thereof) during the preceding calendar
month.
Liquidation Proceeds
: Amounts, including Insurance
Proceeds, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through
trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other
proceeds received in connection with an REO Property other than
Recoveries.
Loan Group
: Either of Loan Group 1 or
Loan Group 2.
Loan Group 1
: All Mortgage Loans identified as
Loan Group 1 Mortgage Loans on the Mortgage Loan
Schedule.
Loan Group 2
: All Mortgage Loans identified as
Loan Group 2 Mortgage Loans on the Mortgage Loan
Schedule.
Loan-to-Value Ratio
: As of any date, the fraction,
expressed as a percentage, the numerator of which is the Stated
Principal Balance of the related Mortgage Loan at the date of
determination and the denominator of which is the Appraised Value
of the Mortgaged Property.
Loss and Delinquency
Test : With respect to
the SPS Mortgage Loans, SPS will fail the Loss and Delinquency Test
on any date of determination as to which (i) the aggregate
outstanding principal balance of the SPS Mortgage Loans delinquent
60 days or more (including all related REO Properties and related
Mortgage Loans in foreclosure) (averaged over the preceding six
month period), as a percentage of the aggregate principal balance
of the SPS Mortgage Loans as of the first day of the month of such
determination is equal to or greater than 50% or (ii) cumulative
Realized Losses for the SPS Mortgage Loans exceed (a) with respect
to any month prior to the third anniversary of the first
Distribution Date, 20% of the aggregate principal balance of the
SPS Mortgage Loans as of the Closing Date (the “Original SPS
Mortgage Loan Principal Balance”), (b) with respect to any
month on or after the third anniversary but prior to the eighth
anniversary of the first Distribution Date, 30% of the Original SPS
Mortgage Loan Principal Balance, (c) with respect to any month on
or after the eighth anniversary but prior to the ninth anniversary
of the first Distribution Date, 35% of the Original SPS Mortgage
Loan Principal Balance, (d) with respect to any month on or after
the ninth anniversary but prior to the tenth anniversary of the
first Distribution Date, 40% of the Original SPS Mortgage Loan
Principal Balance, (e) with respect to any month on or after
the tenth anniversary but prior to the eleventh anniversary of the
first Distribution Date, 45% of the Original SPS Principal Balance
and (f) with respect to any month on or after the eleventh
anniversary of the first Distribution Date, 50% of the Original SPS
Mortgage Loan Principal Balance. For purposes of this definition,
the term “Realized Losses” shall not include Debt
Service Reductions or Deficient Valuations.
Lost Mortgage Note
: Any Mortgage Note the original of
which was permanently lost or destroyed and has not been
replaced.
Marker Rate
: With respect to the Class 1-X
Certificates and the REMIC I Regular Interests and any Distribution
Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC I Pass-Through Rates for REMIC I
Regular Interest LT2 and REMIC I Regular Interest LT3. With respect
to the Class 2-X Certificates and the REMIC II Regular Interests
and any Distribution Date, a per annum rate equal to two (2) times
the weighted average of the Uncertificated REMIC II Pass-Through
Rates for REMIC II Regular Interest LT6 and REMIC II Regular
Interest LT7.
Master Servicer
: Wells Fargo.
Maximum Interest Rate
: With respect to the LIBOR
Certificates and any Distribution Date, an annual rate equal to the
weighted average of the Maximum Mortgage Rates of the Mortgage
Loans in the related Loan Group minus the weighted average
Expense Fee Rate of the Mortgage Loans in the related Loan
Group.
Maximum Mortgage Rate
: With respect to each Mortgage
Loan, the percentage set forth in the related Mortgage Note as the
maximum Mortgage Rate thereunder.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS Mortgage Loan
: Any Mortgage Loan registered with
MERS on the MERS® System.
MERS® System
: The system of recording transfers
of mortgages electronically maintained by MERS.
MIN : The mortgage identification number for any
MERS Mortgage Loan.
Minimum Mortgage Rate
: With respect to each Mortgage
Loan, the percentage set forth in the related Mortgage Note as the
minimum Mortgage Rate thereunder.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee fro the originator of such Mortgage
Loan and its successors and assigns.
Moody’s
: Moody’s Investors Service,
Inc. or any successor thereto.
Mortgage : With respect to a Mortgage Loan, the mortgage,
deed of trust or other instrument creating a first lien on a fee
simple or leasehold estate securing a Mortgage Note.
Mortgage File
: For each Mortgage Loan, the
Trustee Mortgage File and the Servicer Mortgage File.
Mortgage Guaranty Insurance
Policy : Each policy of
primary mortgage guaranty insurance or any replacement policy
therefore with respect to any Mortgage Loan.
Mortgage Loans
: Such of the mortgage loans and
cooperative loans (if any) 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. With respect to each Mortgage Loan that
is a Cooperative Loan, if any, “Mortgage Loan” shall
include, but not be limited to, the related Mortgage Note, Security
Agreement, Assignment of Proprietary Lease, Recognition Agreement,
Cooperative Shares and Proprietary Lease and, with respect to each
Mortgage Loan other than a Cooperative Loan, “Mortgage
Loan” shall include, but not be limited to the related
Mortgages and the related Mortgage Notes.
Mortgage Loan Purchase
Price : The price,
calculated as set forth in Section 11.01, to be paid in
connection with the purchase of the Mortgage Loans pursuant to an
Optional Termination of the Trust Fund.
Mortgage Loan Schedule
: The list of 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 Sections 2.01, 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 and applicable Servicer by Loan Group:
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1. the Mortgage Loan
identifying number;
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2. the Mortgagor’s
name;
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3. the street address of
the Mortgaged Property including the state and zip code;
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4. a code
indicating the type of Mortgaged Property (detached single family
dwelling, PUD, condominium unit, two- to four-unit residential
property or Cooperative Unit) and the occupancy status.
5. 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;
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6. the Loan-to-Value
Ratio at origination;
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7. the Mortgage Rate as
of the Cut-off Date;
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8. the stated maturity
date;
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9. the amount of the
Scheduled Payment as of the Cut-off Date;
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10. the original
principal amount of the Mortgage Loan;
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11. 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;
12. a code indicating the
purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take out refinance);
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13. whether such Mortgage
Loan has a Prepayment Premium;
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14. the Expense Fee Rate
as of the Cut-off Date;
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15. the
related Servicing Fee Rate (which may be disclosed on the Mortgage
Loan Schedule in two parts identified as the master servicing fee
and servicing fee or in two parts identified as the “Lender
Fee” and the “Mgmt Fee”);
16. whether
such Mortgage Loan is a SPS Serviced Mortgage Loan, Wells Fargo
Serviced Mortgage Loan or Countrywide Serviced Mortgage
Loan;
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17. the Index that is
associated with such Mortgage Loan, if applicable;
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18. the Gross Margin, if
applicable;
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19. the Periodic Rate
Cap, if applicable;
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20. the Minimum Mortgage
Rate, if applicable;
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21. the Maximum Mortgage
Rate, if applicable;
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22. the first Adjustment
Date after the Cut-off Date, if applicable;
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23. a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan and,
if so, its corresponding MIN;
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24. the Custodian for
such Mortgage Loan; and
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25. the Payment Cap, if
applicable.
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With respect to the Mortgage Loans
in the aggregate, each Mortgage Loan Schedule shall set forth the
following information, as of the Cut-off Date:
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1. the number of Mortgage
Loans;
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2. 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; and
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3. the weighted average
Mortgage Rate of the Mortgage Loans.
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Mortgage Note
: The original executed note or
other evidence of the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note.
Mortgaged Property
: The underlying real property
securing a Mortgage Loan or, with respect to a Cooperative Loan,
the related Cooperative Shares and Proprietary Lease.
Mortgagor : The obligor on a Mortgage Note.
Negative Amortization
Loan : Each Mortgage Loan
which allows for the capitalization of interest payments thereon as
described in the related Mortgage Note.
Net Deferred Interest
: For any Distribution Date and Loan
Group 2, an amount equal to the excess, if any, of the
aggregate Deferred Interest for the Group 2 Mortgage Loans for
that Distribution Date, over the Principal Prepayment Amount for
Loan Group 2 for that Distribution Date.
Net Deferred Interest Allocation
Amount : For any
Distribution Date and any Class of Group 2 LIBOR Certificates,
an amount equal to the excess, if any, of (i) the Interest
Distribution Amount such Class would have otherwise received on
that Distribution Date at a per annum rate equal to the least of
(x) the sum of the Certificate Index for that Distribution Date
plus the related Certificate Margin, (y) the Net WAC Rate for
Loan Group 2 for such Distribution Date and (z) 10.50%,
over (ii) interest for such Class at a per annum rate equal to the
Group 2 Adjusted Net WAC Rate.
For any Distribution Date and the
Class 2-X-PO Component of the Class 2-X Certificates, all
amounts of Net Deferred Interest remaining on such Distribution
Date after allocation of the Net Deferred Interest Allocation
Amount for all Classes of the Group 2 LIBOR Certificates on
such Distribution Date.
Net Interest
Shortfalls : For any
Distribution Date each of the Group 1 Mortgage Loans and
Group 2 Mortgage Loans, the sum of (A) the amount of interest
which would otherwise have been received for a Mortgage Loan in the
related Loan Group during the prior calendar month that was
the subject of (x) a Relief Act Reduction or (y) a Special Hazard
Loss, Fraud Loss or Bankruptcy Loss, after the exhaustion of the
respective amounts of coverage provided by the related Subordinate
Certificates for those types of losses; and (B) any related
Net Prepayment Interest Shortfalls.
Net Liquidation
Proceeds : With respect
to any Liquidated Mortgage Loan, the excess of the related
Liquidation Proceeds over the sum of Liquidation Expenses, Expense
Fees and unreimbursed Advances and Servicing Advances.
Net Mortgage Rate
: As to each Mortgage Loan, and at
any time, the per annum rate equal to the Mortgage Rate for such
Mortgage Loan less the related Expense Fee Rate.
Net Prepayment Interest
Shortfalls : With respect
to any Distribution Date, the amount by which the aggregate of
Prepayment Interest Shortfalls during the related Prepayment Period
exceeds the Compensating Interest Payment for such Distribution
Date.
Net Realized Losses
: For any Class of
Certificates, the excess of (i) the amount of unreimbursed Realized
Losses previously allocated to that Class over (ii) the sum of
(a) the amount of any increases to the Class Principal Balance
of that Class pursuant to Section 4.03 due to Recoveries
and (b) amounts previously distributed to such
Class pursuant to Section 4.01(I)(A)(b)(xiii) or
Section 4.01(I)(A)(d)(iii), as applicable.
Net Recovery Realized
Losses : For any
Class of Certificates, and any Distribution Date, the excess
of Net Realized Losses for such Distribution Date over the amount
distributed pursuant to Section 4.01(I)(A)(b)(xiii) or
Section 4.01(I)(A)(d)(xiii), as applicable, on that
Distribution Date.
Net WAC Rate
: With respect to any Distribution
Date and each Loan Group, a per annum rate equal to the weighted
average of the Net Mortgage Rates on the Mortgage Loans in such
Loan Group as of the second preceding Due Date (excluding any such
Mortgage Loans that were subject to a Payoff, the principal of
which was distributed on the Distribution Date preceding the
current Distribution Date) after giving effect to payments due on
such Due Date, whether or not received, weighted on the basis of
the Stated Principal Balances as of such date.
In addition, for any purpose for
which the Net WAC Rate is calculated, the interest rate on the
Mortgage Loans shall be appropriately adjusted to account for the
difference between any counting convention used with respect to the
Mortgage Loans and any counting convention used with respect to a
REMIC Regular Interest.
Non-Designated Mortgage
Loans : The Mortgage
Loans that are not Designated Mortgage Loans.
Nonrecoverable Advance
: Any portion of an Advance or
Servicing Advance previously made or proposed to be made by the
Master Servicer or a Servicer that, in the good faith judgment of
the Master Servicer or a Servicer (as applicable), will not be
ultimately recoverable by the Master Servicer or a Servicer (as
applicable) from the related Mortgagor, related Liquidation
Proceeds or otherwise from proceeds or collections on the related
Mortgage Loan.
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, any Vice Chairman
of the Board, the President, an Executive Vice President, Senior
Vice President, a Vice President, or other authorized officer, the
Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Seller, the Master
Servicer, the Servicers, the Special Servicer, a Subservicer, the
Trustee or the Trust Administrator, as the case may be, and
delivered to the Depositor,
the Seller, the Master Servicer, the
Special Servicer, the Servicers, the Trustee or the Trust
Administrator, as required by this Agreement.
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for the Depositor, the Master Servicer or a
Servicer, including in-house counsel, reasonably acceptable to the
Trustee and the Trust Administrator. With respect to the definition
of Eligible Account in this Article I and Sections 2.05 and
7.04 hereof and any opinion dealing with the qualification of each
REMIC created hereunder or compliance with the REMIC Provisions,
such counsel must (i) in fact be independent of the Depositor,
the Master Servicer and such Servicer, (ii) not have any direct
financial interest in the Depositor, the Master Servicer or such
Servicer or in any affiliate of either of them and (iii) not be
connected with the Depositor, the Master Servicer or such Servicer
as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided that with
respect to Wells Fargo Bank, N.A. as Servicer, such counsel may be
in-house counsel for Wells Fargo Bank, N.A. as Servicer.
Optional Termination
: The purchase of the Mortgage Loans
pursuant to Section 11.01.
Optional Termination
Date : The date fixed by
a Terminating Entity for the purchase of the Mortgage Loans
pursuant to Section 11.01.
OTS : The Office of Thrift Supervision.
Outsourcer
: As defined in
Section 3.02.
Participant
: A broker, dealer, bank, other
financial institution or other Person for whom DTC effects book
entry transfers and pledges of securities deposited with
DTC.
Par-Value : As defined in Section 11.01.
Pass-Through Entity
: (a) a regulated investment company
described in Section 851 of the Code, a real estate investment
trust described in Section 856 of the Code, a common trust
fund or an organization described in Section 1381(a) of the
Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another
person.
Pass-Through Rate
: For any interest bearing
Class of Certificates, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
Interest on the Group 1 Certificates and Class 2-X
Certificates will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest on the Group 2
LIBOR Certificates will be computed on the basis of a 360-day year
and the actual number of days elapsed in the related Accrual
Period.
Payahead : Any Scheduled Payment intended by the related
Mortgagor to be applied in a Collection Period subsequent to the
Collection Period in which such payment was received.
Payment Cap
: With respect to each Negative
Amortization Loan, the payment cap described in the related
Mortgage Note.
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.
Payoff Interest
: For any Distribution Date with
respect to each SPS Serviced Mortgage Loan for which a Payoff was
received on or after the first calendar day of the month of such
Distribution Date and before the 15th calendar day of such month,
an amount of interest thereon at the applicable Net Mortgage Rate
from the first day of such month through the day of receipt
thereof.
Percentage Interest
: With respect to any Certificate,
either the percentage 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.
Person : Any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government, or any agency or
political subdivision thereof.
Physical Certificates
: As set forth in the Preliminary
Statement.
Pledge Instruments
: With respect to each Cooperative
Loan, the Stock Power, the Assignment of Proprietary Lease and the
Security Agreement.
Prepayment Interest
Shortfall : With respect
to any Mortgage Loan, Distribution Date and Principal Prepayment
(other than a Payoff on a Wells Fargo Serviced Mortgage Loan or a
SPS Serviced Mortgage Loan received during the period from and
including the first day to and including the 14th day of the month
of such Distribution Date) received during the related Prepayment
Period, the difference between (i) one full month’s interest
at the applicable Mortgage Rate (giving effect to any applicable
Relief Act Reduction, Debt Service Reduction and Deficient
Valuation), as reduced by the Servicing Fee Rate, if applicable, on
the outstanding principal balance of such Mortgage Loan immediately
prior to such prepayment or, if such Principal Prepayment is a
Curtailment, the principal amount of such Curtailment and (ii) the
amount of interest actually received with respect to such Mortgage
Loan in connection with such Principal Prepayment, net of the
Servicing Fee, if applicable.
Prepayment Period
: With respect to each Distribution
Date and each Payoff with respect to a Wells Fargo Serviced
Mortgage Loan or SPS Serviced Mortgage Loan, the related
“Prepayment Period” will commence on the 15th day of
the month preceding the month in which the related Distribution
Date occurs (or, in the case of the first Distribution Date,
commencing on the Cut-off Date) and will end on the 14th day of the
month in which such Distribution Date occurs. With respect to each
Distribution Date and each Payoff with respect to any Mortgage Loan
serviced by a Designated Servicer, the related “Prepayment
Period” will be the period set forth in the related
Designated Servicing Agreement. With respect to each Distribution
Date and each Curtailment with respect to any Mortgage Loan, the
related “Prepayment Period” will be the calendar month
preceding the month in which such Distribution Date
occurs.
Prepayment Premium
: With respect to any Mortgage Loan,
any fee or premium required to be paid if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Principal Payment
Amount : For any
Distribution Date and Loan Group 1 or Loan Group 2, the
sum of (i) the principal portion of the Scheduled Payments on the
Mortgage Loans in such Loan Group due on the related Due Date,
(ii) the principal portion of repurchase proceeds received with
respect to any Mortgage Loan in such Loan Group which was
repurchased as permitted or required by this Agreement during the
period beginning on the 15th day of the month preceding such
Distribution Date and ending on the 14th day of the month of such
Distribution Date, with notice and receipt of funds three (3)
Business Days prior to the 14th day of the month of such
Distribution Date and (iii) any other
unscheduled payments of principal
which were received on the Mortgage Loans in such Loan
Group during the related calendar month preceding the month of
such Distribution Date, other than Principal Prepayments or
Liquidation Principal.
Principal Prepayment
: Any payment of principal on a
Mortgage Loan which constitutes a Payoff or Curtailment.
Principal Prepayment
Amount : For any
Distribution Date and Loan Group 1 or Loan Group 2, the
sum of (i) all Principal Prepayments relating to the Mortgage Loans
in such Loan Group which were received during the related
Prepayment Period and (ii) all Recoveries received during the
calendar month preceding the month of that Distribution
Date.
Private Certificates
: As set forth in the Preliminary
Statement.
Proprietary Lease
: The lease on a Cooperative Unit
evidencing the possessory interest of the owner of the Cooperative
Shares in such Cooperative Unit.
Pro Rata Share
: With respect to any Distribution
Date and any Class of Class B Certificates, the portion
of the Subordinate Principal Distribution Amount allocable to such
Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the
numerator of which is the related Class Principal Balance of
such Class and the denominator of which is the aggregate of
the Class Principal Balances of the Class B
Certificates.
Prospectus
: The Prospectus, dated January 25,
2005, relating to the offering by the Depositor from time to time
of its Mortgage-Backed Pass-Through Certificates (Issuable in
Series) in the form in which it was or will be filed with the
Securities and Exchange Commission pursuant to Rule 424(b) under
the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement
: The Prospectus Supplement, dated
July 27, 2005, relating to the offering of the Offered
Certificates in the form in which it was or will be filed with the
Securities and Exchange Commission pursuant to Rule 424(b) under
the 1933 Act with respect to the offer and sale of the offered
certificates.
PUD : Planned Unit Development.
Purchase Price
: With respect to any Mortgage Loan
required repurchased by the Seller pursuant to Section 2.02 or
2.03, purchased by a holder of certain Certificates pursuant to
Section 3.11(f) or purchased at the option of the Special
Servicer pursuant to Section 3.11(g), the sum of (i) 100%
of the Stated Principal Balance of the Mortgage Loan as of the
first day of the month of such purchase, (ii) accrued and
unpaid interest on the Mortgage Loan at the applicable Mortgage
Rate (reduced by the related Servicing Fee Rate, if the purchaser
is also the Servicer thereof) from the first day of the month of
such purchase to the first day of the month immediately following
the month of such purchase, (iii) in the case of a Mortgage Loan
purchased by the Seller or the Depositor, the amount of any
unreimbursed Advances and Servicing Advances made by a Servicer, if
such Servicer is not the Seller or the Depositor, with respect to
such Mortgage Loan or, in the case of a Mortgage Loan purchased by
the Special Servicer, any unreimbursed Advances and Servicing
Advances payable to any Servicer (other than the Servicer or
Special Servicer, as the case may be, which is purchasing such
Mortgage Loans) and (iv) with respect to any purchase by the Seller
pursuant to Section 2.03, 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
III(viii) as a result of a violation of a predatory or abusive
lending law applicable to such Mortgage Loan. With respect to any
Mortgage Loan required or allowed to be purchased, the
Special
Servicer, the Certificateholder, the
Seller or the Depositor, as applicable, shall deliver to the
Trustee and the Trust Administrator an Officer’s Certificate
as to the calculation of the Purchase Price.
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 FNMA or FHLMC approved mortgage insurer or having a
claims paying ability rating of at least “AA” or
equivalent rating by a nationally recognized statistical rating
organization. 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 : One or more
mortgage Loans substituted by the Seller for one or more Deleted
Mortgage Loans which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of
Exhibit I, individually or in the aggregate and on a weighted
average basis, as applicable (i) have a Stated Principal Balance,
after deduction of the principal portion of the Scheduled Payment
due in the month of substitution, not in excess of, and not more
than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) 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 Loan-to-Value Ratio no higher than that
of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity not more than one year greater than or less than that of
the Deleted Mortgage Loan; provided that the remaining term to
maturity of any such Mortgage Loan shall be no greater than the
last maturing Mortgage Loan immediately prior to any substitution;
(v) have a Maximum Mortgage Rate and Minimum Mortgage Rate not less
than the respective such rates for the Deleted Mortgage Loan, have
a Gross Margin equal to or greater than the Deleted Mortgage Loan
and have the same Index as the Deleted Mortgage Loan; (vi) not be a
Cooperative Loan unless the Deleted Mortgage Loan was a Cooperative
Loan, (vii) with respect to any Deleted Mortgage Loan that is a
Negative Amortization Loan, have Payment Caps no higher than that
of the Deleted Mortgage Loan and (viii) comply with each
representation and warranty set forth in
Section 2.03(b).
Rating Agencies
: Moody’s and S&P, or any
successor to either of them.
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 any Mortgage Loan,
(1) with respect to each Liquidated Mortgage Loan, an amount (not
less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the
Stated Principal Balance of the Liquidated Mortgage Loan as of the
date of such liquidation, plus (ii) interest at the applicable Net
Mortgage Rate from the related Due Date as to which interest was
last paid or advanced (and not reimbursed) to 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
Net 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; (2) for any Mortgage Loan subject to
a Deficient Valuation, the excess of the Stated Principal Balance
of that Mortgage Loan over the principal amount as reduced in
connection with the proceedings resulting in the Deficient
Valuation; or (3) for any Debt Service Reduction Mortgage Loan, the
present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled
Payment on the applicable Due Date and that no Principal
Prepayments are received on the Mortgage Loan, discounted at the
applicable Mortgage Rate.
Realized Losses allocated to the
Class 2-X Certificates shall be allocated first to the
Class 2-X-IO Component in reduction of the accrued but unpaid
interest thereon until such accrued and unpaid interest shall have
been reduced to zero and then to the Class 2-X-PO Component in
reduction of the Certificate Principal Balance thereof.
Recognition Agreement
: An Agreement among a Cooperative
Corporation, a lender and a Mortgagor with respect to a Cooperative
Loan whereby such parties (i) acknowledge that such lender may
make, or intends to make, such Cooperative Loan, (ii) make certain
agreements with respect to such Cooperative Loan.
Record Date
: With respect to any Distribution
Date and the Certificates other than the LIBOR Certificates held in
Book-Entry Form, the close of business on the last Business Day of
the month preceding the month in which the applicable Distribution
Date occurs. With respect to the LIBOR Certificates that are not
Physical Certificates and any Distribution Date, the close of
business on the Business Day immediately preceding such
Distribution Date; provided , however , that
following the date on which Definitive Certificates for a
Class of LIBOR Certificates are available pursuant to
Section 6.09, the Record Date shall be the close of business
on the last Business Day of the calendar month immediately
preceding the month of such Distribution Date.
Recovery : With respect to any Distribution Date and
Mortgage Loan that became a Liquidated Mortgage Loan in a month
preceding the month prior to the Distribution Date, an amount
received in respect of principal on such mortgage loan which has
previously been allocated as a Realized Loss or Applied Loss Amount
to a class or classes of certificates, net of reimbursable
expenses.
Reference Bank Rate
: With respect to any Accrual Period
relating to the LIBOR Certificates 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 time, on the Interest Determination Date prior to the
first day of such 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 Trust
Administrator after consultation with DLJMC, as of 11:00 A.M., New
York City time, on such date for loans in U.S. Dollars to leading
European banks for a period of one month in amounts approximately
equal to the aggregate Class Principal Balance of the LIBOR
Certificates. If no such quotations can be obtained, the Reference
Bank Rate shall be the Reference Bank Rate applicable to the
preceding Accrual Period.
Reference Banks
: Three major banks that are engaged
in the London interbank market, selected by the Trust Administrator
after consultation with DLJMC.
Registration Statement
: That certain registration
statement on Form S-3, as amended (Registration No. 333-120966),
relating to the offering by the Depositor from time to time of its
Mortgage-Backed Pass-Through Certificates (Issuable in Series) as
heretofore declared effective by the Securities and Exchange
Commission.
Regular Certificates
: All of the Certificates other than
the Class AR and Class AR-L Certificates.
Relief Act
: The Servicemembers Civil Relief
Act, as amended, and any similar state or local statute.
Relief Act Reductions
: With respect to any Distribution
Date and any Mortgage Loan as to which there has been a reduction
in the amount of interest collectible thereon for the most recently
ended calendar month that may be attributable to a prior month, if
applicable, as a result of the application of the Relief Act, the
amount, if any, by which (i) interest collected on such Mortgage
Loan during the most recently ended calendar month is less than
(ii) interest 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. Reference herein to REMIC refers to each REMIC created by the
Preliminary Statement.
REMIC Election
: An election, for federal income
tax purposes, to treat certain assets as a REMIC.
REMIC I Principal Reduction
Amounts : For any
Distribution Date, the amounts by which the principal balances of
the REMIC I Regular Interests will be reduced on such
Distribution Date by the allocation of Realized Losses and the
distribution of principal, determined as follows:
For purposes of the succeeding
formulas the following symbols shall have the meanings set forth
below:
Y 1
= the principal balance of the
REMIC I Regular Interest LT1 after distributions on the prior
Distribution Date.
Y 2
= the principal balance of the
REMIC I Regular Interest LT2 after distributions on the prior
Distribution Date.
Y 3
= the principal balance of the
REMIC I Regular Interest LT3 after distributions on the prior
Distribution Date.
Y 4
= the principal balance of the
REMIC I Regular Interest LT4 after distributions on the prior
Distribution Date (note: Y 3 = Y 4
).
|
ΔY 1
= the REMIC I Regular
Interest LT1 Principal Reduction Amount.
|
|
ΔY 2
= the REMIC I Regular
Interest LT2 Principal Reduction Amount.
|
|
ΔY 3
= the REMIC I Regular
Interest LT3 Principal Reduction Amount.
|
|
ΔY 4
= the REMIC I Regular
Interest LT4 Principal Reduction Amount.
|
P 0
= the aggregate principal
balance of the REMIC I Regular Interests after distributions and
the allocation of Realized Losses on the prior Distribution
Date.
P 1
= the aggregate principal
balance of the REMIC I Regular Interests after distributions and
the allocation of Realized Losses to be made on such Distribution
Date.
ΔP
= P 0 - P 1 =
the aggregate of the REMIC I Regular Interests Principal Reduction
Amounts.
= the
aggregate of the principal portions of Realized Losses to be
allocated to, and the principal distributions to be made on, the
Group 1 Certificates on such Distribution Date (including
distributes of accrued and unpaid interest on the Class 1-X
Certificates for prior Distributions Dates).
R 0
= the Net WAC Rate for Loan
Group 1 (stated as a monthly rate) after giving effect to
amounts distributed and Realized Losses allocated on the prior
Distribution Date.
R 1
= the Net WAC Rate for Loan
Group 1 (stated as a monthly rate) after giving effect to
amounts to be distributed and Realized Losses to be allocated on
such Distribution Date.
α
= (Y 2 +
Y 3 )/P 0 . The initial value of a on the
Closing Date for use on the first Distribution Date shall be
0.0001.
γ 0
= the lesser of (A) the sum of
(x) the sum for all Classes of Group 1 Certificates, other
than the Class 1-X Certificates, of the product for each Class of
(i) the monthly interest rate (as limited by the Net WAC Rate for
Loan Group 1, if applicable) for such Class applicable for
distributions to be made on such Distribution Date and (ii) the
aggregate Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses on the prior
Distribution Date and (y) the aggregate related Basis Risk
Shortfalls for such Distribution Date and (B) R 0 *P
0 .
γ 1
= the lesser of (A) the sum of
(x) the sum for all Classes of Group 1 Certificates of the
product for each Class of (i) the monthly interest rate (as limited
by the Net WAC Rate for Loan Group 1, if applicable) for such
Class applicable for distributions to be made on the next
succeeding Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and the
allocation of Realized Losses to be made on such Distribution Date
and (y) the aggregate related Basis Risk Shortfalls for the next
succeeding Distribution Date and (B) R 1 *P 1
.
Then, based on the foregoing
definitions:
|
ΔY 1 =ΔP - ΔY
2 - ΔY 3 - ΔY 4
;
|
|
ΔY 2 =(α/2){( γ
0 R 1 - γ 1 R 0
)/R 0 R 1 };
|
|
ΔY 3 =αΔP - ΔY
2 ; and
|
|
ΔY 4 =ΔY 3
.
|
if both ΔY 2 and
ΔY 3 , as so determined, are non-negative numbers.
Otherwise:
|
(1) If ΔY
2 , as so determined, is negative, then
|
ΔY 2 = 0;
ΔY 3 = a{γ
1 R 0 P 0 - γ 0 R
1 P 1 }/{γ 1 R 0
};
ΔY 4 = ΔY
3 ; and
ΔY 1 = ΔP -
ΔY 2 - ΔY 3 - ΔY 4
.
|
(2) If ΔY
3 , as so determined, is negative, then
|
ΔY 3 = 0;
ΔY 2 = α{γ
1 R 0 P 0 - γ 0 R
1 P 1 }/{2R 1 R 0 P
1 - γ 1 R 0 };
ΔY 4 = ΔY
3 ; and
ΔY 1 = ΔP -
ΔY 2 - ΔY 3 - ΔY 4
.
REMIC I Realized
Losses : For any
Distribution Date, Realized Losses on the Group 1 Mortgage Loans
for the related Collection Period shall be allocated to the REMIC I
Regular Interests as follows: (1) The interest portion of such
Realized Losses, if any, shall be allocated among the REMIC I
Regular Interests pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof. Any interest
portion of such Realized Losses in excess of the amount allocated
pursuant to the preceding sentence shall be treated as a principal
portion of Realized Losses not attributable to any specific
Mortgage Loan and allocated pursuant to the succeeding sentences.
The principal portion of Realized Losses on the Group 1 Mortgage
Loans for the related Collection Period shall be allocated to the
REMIC I Regular Interests as follows: (1) The principal portion of
such Realized Losses shall be allocated, first, to REMIC I Regular
Interests LT2, LT3 and LT4 pro rata according to their respective
REMIC I Principal Reduction Amounts to the extent thereof in
reduction of the Uncertificated Principal Balance thereof and,
second, the remainder, if any, of such principal portion of such
Realized Losses shall be allocated to REMIC I Regular Interest LT1
in reduction of the Uncertificated Principal Balance
thereof.
REMIC I Regular
Interests : REMIC I
Regular Interest LT1, REMIC I Regular Interest LT2,
REMIC I Regular Interest LT3 and REMIC I Regular Interest
LT4.
REMIC I Regular Interest
LT1 : A regular interest
in REMIC I that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has
such other terms as are described herein.
REMIC I Regular Interest LT1
Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC I Regular Interest LT1 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to
REMIC I Regular Interest LT1 on such Distribution
Date.
REMIC I Regular Interest
LT2 : A regular interest
in REMIC I that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has
such other terms as are described herein.
REMIC I Regular Interest LT2
Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC I Regular Interest LT2 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to
REMIC I Regular Interest LT2 on such Distribution
Date.
REMIC I Regular Interest
LT3 : A regular interest
in REMIC I that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has
such other terms as are described herein.
REMIC I Regular Interest LT3
Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC I Regular Interest LT3 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to
REMIC I Regular Interest LT3 on such Distribution
Date.
REMIC I Regular Interest
LT4 : A regular interest
in REMIC I that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has
such other terms as are described herein.
REMIC I Regular Interest LT4
Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC I Regular Interest LT4 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to
REMIC I Regular Interest LT4 on such Distribution
Date.
REMIC II Principal Reduction
Amounts : For any
Distribution Date, the amounts by which the principal balances of
the REMIC II Regular Interests will be reduced on such
Distribution Date by the allocation of Realized Losses and the
distribution of principal, determined as follows:
For purposes of the succeeding
formulas the following symbols shall have the meanings set forth
below:
Y 5
= the principal balance of the
REMIC II Regular Interest LT5 after distributions on the prior
Distribution Date.
Y 6
= the principal balance of the
REMIC II Regular Interest LT6 after distributions on the prior
Distribution Date.
Y 7
= the principal balance of the
REMIC II Regular Interest LT7 after distributions on the prior
Distribution Date.
Y 8
= the principal balance of the
REMIC II Regular Interest LT8 after distributions on the prior
Distribution Date (note: Y 7 = Y 8
).
|
ΔY 5 =
the REMIC II Regular Interest LT5 Principal
Reduction Amount.
|
|
ΔY 6 =
the REMIC II Regular Interest LT6 Principal
Reduction Amount.
|
|
ΔY 7 =
the REMIC II Regular Interest LT7 Principal
Reduction Amount.
|
|
ΔY 8 =
the REMIC II Regular Interest LT8 Principal
Reduction Amount.
|
Q 0
= the aggregate principal
balance of the REMIC II Regular Interests after distributions and
the allocation of Realized Losses on the prior Distribution
Date.
Q 1
= the aggregate principal
balance of the REMIC II Regular Interests after distributions and
the allocation of Realized Losses to be made on such Distribution
Date.
ΔQ = Q
0 - Q 1 = the aggregate of the REMIC II
Regular Interests Principal Reduction Amounts.
= the
aggregate of the principal portions of Realized Losses to be
allocated to, and the principal distributions to be made on, the
Group 2 Certificates on such Distribution Date (including
distributions of accrued and unpaid interest on the Class 2-X
Certificates for prior Distribution Dates).
S 0
= the Net WAC Rate for Loan
Group 2 (stated as a monthly rate) after giving effect to
amounts distributed and Realized Losses allocated on the prior
Distribution Date.
S 1
= the Net WAC Rate for Loan
Group 2 (stated as a monthly rate) after giving effect to
amounts to be distributed and Realized Losses to be allocated on
such Distribution Date.
β
= (Y 6 +
Y 7 )/Q 0 . The initial value of ß on
the Closing Date for use on the first Distribution Date shall be
0.0001.
Γ 0
= the lesser of (A) the sum of
(x) the sum for all Classes of Group 2 Certificates, other
than the Class 2-X Certificates, of the product for each Class
of (i) the monthly interest rate (as limited by the Net WAC Rate
for Loan Group 2, if applicable) for such Class applicable for
distributions to be made on such Distribution Date and (ii) the
aggregate Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses on the prior
Distribution Date and (y) the aggregate related Basis Risk
Shortfalls for such Distribution Date and (B) S 0 *Q
0 .
Γ 1
= the lesser of (A) the sum of (x) the
sum for all Classes of Group 2 Certificates, other than the
Class 2-X Certificates, of the product for each Class of (i)
the monthly interest rate (as limited by the Net WAC Rate for Loan
Group 2, if applicable) for such Class applicable for
distributions to be made on the next succeeding Distribution Date
and (ii) the aggregate Certificate Principal Balance for such Class
after distributions and the allocation of Realized Losses to be
made on such Distribution Date and (y) the aggregate related Basis
Risk Shortfalls for the next succeeding Distribution Date and
(B) S 1 *Q 1 .
Then, based on the foregoing
definitions:
|
ΔY 5 =
ΔQ -
ΔY 6 - ΔY 7 - ΔY 8
;
|
|
ΔY 6 =
(β/2){(Γ 0 S 1 -
Γ 1 S 0 )/S 0 S 1
};
|
|
ΔY 7 =
βΔQ - ΔY 6 ;
and
|
|
ΔY 8 =
ΔY
7 .
|
if both ΔY 6 and
ΔY 7 , as so determined, are non-negative numbers.
Otherwise:
|
(1) If ΔY 6 , as so determined, is
negative, then
|
ΔY 6 = 0;
ΔY 7 = β{Γ
1 S 0 Q 0 - Γ 0 S
1 Q 1 }/{Γ 1 S 0
};
ΔY 8 = ΔY
7 ; and
ΔY 5 = ΔQ -
ΔY 6 - ΔY 7 - ΔY 8
.
|
(2) If ΔY
7 , as so determined, is negative, then
|
ΔY 7 = 0;
ΔY 6 = β{Γ
1 S 0 Q 0 - Γ 0 S
1 Q 1 }/{2S 1 S 0 Q
1 - Γ 1 S 0 };
ΔY 8 = ΔY
7 ; and
ΔY 5 = ΔQ -
ΔY 6 - ΔY 7 - ΔY 8
.
REMIC II Realized
Losses : For any
Distribution Date, Realized Losses on the Group 2 Mortgage Loans
for the related Collection Period shall be allocated to the REMIC
II Regular Interests as follows: (1) The interest portion of such
Realized Losses, if any, shall be allocated among the REMIC II
Regular Interests pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof. Any interest
portion of such Realized Losses in excess of the amount allocated
pursuant to the preceding sentence shall be treated as a principal
portion of Realized Losses not attributable to any specific
Mortgage Loan and allocated pursuant to the succeeding sentences.
The principal portion of Realized Losses on the Group 2 Mortgage
Loans for the related Collection Period shall be allocated to the
REMIC II Regular Interests as follows: (1) The principal portion of
such Realized Losses shall be allocated, first, to REMIC II Regular
Interests LT6, LT7 and LT8 pro rata according to their respective
REMIC II Principal Reduction Amounts to the extent thereof in
reduction of the Uncertificated Principal Balance thereof and,
second, the remainder, if any, of such principal portion of such
Realized Losses shall be allocated to REMIC II Regular Interest LT5
in reduction of the Uncertificated Principal Balance
thereof.
REMIC II Regular
Interests : REMIC II
Regular Interest LT5, REMIC II Regular Interest LT6,
REMIC II Regular Interest LT7 and REMIC II Regular
Interest LT8.
REMIC II Regular Interest
LT5 : A regular interest
in REMIC II that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that
has such other terms as are described herein.
REMIC II Regular Interest
LT5 Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC II Regular Interest LT5 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to
REMIC II Regular Interest LT5 on such Distribution
Date.
REMIC II Regular Interest
LT6 : A regular interest
in REMIC II that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that
has such other terms as are described herein.
REMIC II Regular Interest
LT6 Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC II Regular Interest LT6 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to
REMIC II Regular Interest LT6 on such Distribution
Date.
REMIC II Regular Interest
LT7 : A regular interest
in REMIC II that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that
has such other terms as are described herein.
REMIC II Regular Interest
LT7 Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC II Regular Interest LT7 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to
REMIC II Regular Interest LT7 on such Distribution
Date.
REMIC II Regular Interest
LT8 : A regular interest
in REMIC II that is held as an asset of REMIC III, that
has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that
has such other terms as are described herein.
REMIC II Regular Interest
LT8 Principal Distribution Amount : For any Distribution Date, the excess, if any,
of REMIC II Regular Interest LT8 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to
REMIC II Regular Interest LT8 on such Distribution
Date.
REMIC Provisions
: The provisions of the federal
income tax law relating to REMICs, which appear at
Sections 860A through 860G of the Code, and related provisions
and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REMIC Regular Interest
: Any of the REMIC I Regular
Interests, REMIC II Regular Interests and REMIC III
Regular Interests.
REO Disposition
: The final sale by Wells Fargo, in
its capacity as Servicer, of any REO Property.
REO Disposition
Fee : With respect to
each REO Disposition, the greater of (i) $1,200 or (ii) one
percent (1%) of the final sales price of such
REO Disposition.
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.
Required Insurance
Policy : With respect to
any Non-Designated Mortgage Loan, any insurance policy that is
required to be maintained from time to time under this Agreement in
respect of such Mortgage Loan or the related Mortgaged
Property.
Residual Certificates
: The Class AR and
Class AR-L Certificates.
Responsible Officer
: When used with respect to the
Trust Administrator, shall mean any officer within the corporate
trust department of the Trust Administrator, including any
Assistant Vice President, the Secretary, any Vice President,
Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or any other officer of the Trust Administrator
customarily performing functions similar to those performed by any
of the above designated officers and any officer within the
Corporate Trust Department having direct responsibility for the
administration of this Agreement. When used with respect to the
Trustee, shall mean any officer within the Corporate Trust
Department having direct responsibility for the administration of
this Agreement and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular
subject.
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) immediately preceding months.
Rule 144A : Rule 144A under the 1933 Act, as in effect
from time to time.
S&P : Standard & Poor’s Ratings Services,
a division of The McGraw-Hill Companies, Inc., or any successor
thereto.
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.
Security Agreement
: With respect to a Cooperative
Loan, the agreement or mortgage creating a security interest in
favor of the originator of the Cooperative Loan in the related
Cooperative Shares.
Seller : DLJMC.
Senior Certificates
: As specified in the Preliminary
Statement.
Senior Liquidation
Amount : The Group 1
Senior Liquidation Amount or the Group 2 Senior Liquidation
Amount, as applicable.
Senior Percentage
: The Group 1 Senior Percentage
or Group 2 Senior Percentage, as applicable.
Senior Prepayment
Percentage : The Senior
Prepayment Percentage for any Distribution Date occurring during
the ten years beginning on the first Distribution Date for each of
Loan Group 1 and Loan Group 2 will equal 100%. The Senior
Prepayment Percentage for any Distribution Date occurring on or
after the tenth anniversary of the first Distribution Date for each
such Loan Group will be as follows: for any Distribution Date
in the first year thereafter, the related Senior Percentage plus
70% of the related Subordinate Percentage for such Distribution
Date; for any Distribution Date in the second year thereafter, the
related Senior Percentage plus 60% of the related Subordinate
Percentage for such Distribution Date; for any Distribution Date in
the third year thereafter, the related Senior Percentage plus 40%
of the related Subordinate Percentage for such Distribution Date;
for any Distribution Date in the fourth year thereafter, the
related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and for any Distribution
Date after the fourth year thereafter, the related Senior
Percentage for such Distribution Date.
Notwithstanding the foregoing, on
any Distribution Date and with respect to Loan Group 1 or Loan
Group 2 if the Senior Percentage exceeds the initial related
Senior Percentage, the Senior Prepayment Percentage for each
Group for that Distribution Date will equal 100%, (ii) if
on or before the Distribution Date in July 2008, the
Class B Percentage is greater than or equal to twice the
Class B Percentage as of the Closing Date, in which case the
Senior Prepayment Percentage for each Group will equal the
related Senior Percentage, plus 50% of the related Subordinate
Percentage for that Distribution Date, and if after the
Distribution Date in July 2008, the Class B Percentage is
greater than or equal to twice the Class B Percentage as of
the Closing Date, then the Senior Prepayment Percentage for each
such Group for such Distribution Date will equal the related
Senior Percentage).
Notwithstanding the foregoing, the
Senior Prepayment Percentage for any of Loan Group 1 or Loan
Group 2 shall equal 100% for any Distribution Date as to which
(i) the outstanding principal balance of the Mortgage Loans in the
related Loan Group, delinquent 60 days or more (including all REO
Properties and Mortgage Loans in foreclosure) (averaged over the
preceding six month period), as a percentage of the related
aggregate Subordinate Component Balance as of such
Distribution Date is equal to or greater than 50% or
(ii) cumulative Realized Losses for the Mortgage Loans in the
related Loan Group exceed (a) with respect to any Distribution
Date prior to the third anniversary of the first Distribution Date,
20% of the related aggregate Subordinate Component Balance as
of the Closing Date (the “Original Subordinate Principal
Balance”), (b) with respect to any Distribution Date on or
after the third anniversary but prior to the eighth anniversary of
the first Distribution Date,
30% of the related Original
Subordinate Principal Balance, (c) with respect to any Distribution
Date on or after the eighth anniversary but prior to the ninth
anniversary of the first Distribution Date, 35% of the related
Original Subordinate Principal Balance, (d) with respect to
any Distribution Date on or after the ninth anniversary but prior
to the tenth anniversary of the first Distribution Date, 40% of the
related Original Subordinate Principal Balance, (e) with
respect to any Distribution Date on or after the tenth anniversary
but prior to the eleventh anniversary of the first Distribution
Date, 45% of the related Original Subordinate Principal Balance and
(f) with respect to any Distribution Date on or after the eleventh
anniversary of the first Distribution Date, 50% of the Original
Subordinate Principal Balance.
If the Senior Prepayment Percentage
for one Loan Group equals 100% due to the limitations set
forth above, then the Senior Prepayment Percentage for the other
Loan Groups will equal 100%.
If on any Distribution Date the
allocation to a Class of Senior Certificates then entitled to
distributions of Principal Prepayments and other amounts in the
percentage required above would reduce the outstanding
Class Principal Balance of that Class below zero, the
distribution to that Class of Senior Certificates of the
Senior Prepayment Percentage of those amounts for such Distribution
Date shall be limited to the percentage necessary to reduce the
related Class Principal Balance to zero.
Senior Principal Distribution
Amount : The Group 1
Senior Principal Distribution Amount or Group 2 Senior
Principal Distribution Amount, as applicable.
Servicer Employee
: As defined in
Section 3.18.
Servicer Letter
Agreement : With respect
to each Servicer, the letter agreement, dated as of the Closing
Date, between such Servicer and DLJMC regarding surviving
provisions such Servicer’s mortgage loan purchase and
servicing agreement with DLJMC.
Servicer Mortgage File
: All documents pertaining to a
Mortgage Loan not required to be included in the Trustee Mortgage
File and held by the Master Servicer or the related Servicer or any
Subservicer.
Servicers : SPS, Wells Fargo and Wilshire to the extent it
has taken over the servicing of one or more Mortgage Loans pursuant
to Section 3.19 and, in each case, any successor in interest
thereto or any successor servicer appointed as provided
herein.
Servicing Advance
: With respect to the Non-Designated
Mortgage Loans, all customary, reasonable and necessary “out
of pocket” costs and expenses incurred prior to, on or after
the Cut-off Date in the performance by a Servicer of its servicing
obligations related to such Mortgage Loans, including, but not
limited to, the cost (including reasonable attorneys’ fees
and disbursements) of (i) the preservation, restoration and
protection of a Mortgaged Property, (ii) compliance with the
obligations under Section 3.11 and any enforcement or judicial
proceedings, including foreclosures, (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 a Servicer in connection
with obtaining an environmental inspection or review pursuant to
the second paragraph of Section 3.11(a), (v) compliance with
the obligations under Section 3.09, (vi) locating any
documents missing from the Trustee’s Mortgage File and (vii)
obtaining broker price opinions. In no event will any Servicer be
required to make any Servicing Advance which would constitute a
Nonrecoverable Advance.
With respect to the Designated
Mortgage Loans, Servicing Advance shall have the meaning assigned
to such term in the related Designated Servicing
Agreement.
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 3.14.
Servicing Fee Rate
: As to each Mortgage Loan, the per
annum rate set forth on the related Mortgage Loan
Schedule.
Servicing Officer
: Any officer of a 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 and the Trust
Administrator by a Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended and
delivered to the Trustee and Trust Administrator.
Special Hazard Loss
: A Realized Loss (or portion
thereof) with respect to a Mortgage Loan arising from any direct
physical loss or damage to a Mortgaged Property which is not
covered by a standard hazard maintenance policy with extended
coverage or by a flood insurance policy, if applicable (or which
would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except:
(i) wear and tear, deterioration, rust or corrosion, mold, wet or
dry rot, inherent vice or latent defect, animals, birds, vermin,
insects; (ii) settling, subsidence, cracking, shrinkage, bulging or
expansion of pavements, foundations, walls, floors, roofs or
ceilings; (iii) errors in design, faulty workmanship or faulty
materials, unless the collapse of the property or part thereof
ensues and then only for the ensuing loss; (iv) nuclear or chemical
reaction or nuclear radiation or radioactive or chemical
contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote; (v) hostile
or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or
expected attack (a) by any government of sovereign power, de
jure or de facto, or by any authority maintaining or using
military, naval or air forces, (b) by military, naval or air
forces, or (c) by an agent of any such government, power, authority
or forces; (vi) any weapon of war employing atomic fission or
radioactive force whether in time of peace or war; or (vii)
insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage
Amount : With respect to
each Loan Group, as of the Closing Date, with respect to Loan
Group 1, an amount equal to $4,000,000, and with respect to
Loan Group 2, an amount equal to $3,991,882, subject in each
case to reduction from time to time, to be an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of
the Aggregate Loan Group Balance of such Loan Group, (ii) twice the
principal balance of the largest Mortgage Loan in such Loan Group
and (iii) the aggregate Stated Principal Balances of the Mortgage
Loans in such Loan Group secured by Mortgaged Properties located in
the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the
Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if any, of losses attributable to Special Hazard Losses
allocated to the related Subordinate Certificates since the Closing
Date. All Stated Principal Balances for the purpose of this
definition will be calculated as of the first day of the month
preceding such Distribution Date after giving effect to scheduled
installments of principal and interest on the Mortgage Loans then
due, whether or not paid. The Special Hazard Loss Coverage Amount
for a Loan Group may be reduced below the amount set forth above
for any Distribution Date with the consent of the Rating Agencies
as evidenced by a letter of each Rating Agency to the Trust
Administrator to the effect that any such reduction will not result
in a downgrading of the current ratings assigned to such Classes of
Certificates rated by it.
Special Hazard Loss Coverage
Termination Date : The
date on which the Special Hazard Loss Coverage Amount is reduced to
zero.
Special Servicer
: Wilshire Credit Corporation, and
its successors and permitted assigns.
Special Serviced Mortgage
Loan : The Mortgage Loans
for which the Special Servicer acts as servicer pursuant to
Section 3.19.
SPS : Select Portfolio Servicing, Inc., a Utah
corporation, and its successors and assigns.
SPS Mortgage Loans
: Any SPS Serviced Mortgage Loans
for which SPS has not entered into a subservicing arrangement for
such Mortgage Loan pursuant to Section 3.02 hereof.
SPS Serviced Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule for which
SPS is the applicable Servicer.
Standard Hazard Policy
: Each standard hazard insurance
policy or replacement therefore referred to in
Section 3.09.
Startup Day
: The Closing Date.
Stated Principal
Balance : With respect 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
irrespective of any delinquency in payment by the related Mortgagor
and any addition of Deferred Interest with respect
thereto.
Stock Power
: With respect to a Cooperative
Loan, an assignment of the stock certificate or an assignment of
the Cooperative Shares issued by the Cooperative
Corporation.
Streamlined Mortgage
Loan : A Mortgage Loan
originated in connection with the refinance of a mortgage loan
pursuant to the Seller’s streamlined documentation program
then in effect.
Subordinate Liquidation
Amount : For any
Distribution Date and each Loan Group, the excess, if any, of the
aggregate Liquidation Principal of all Mortgage Loans in that Loan
Group which became Liquidated Mortgage Loans during the
calendar month preceding the Distribution Date over the
Group 1 Senior Liquidation Amount or Group 2 Senior
Liquidation Amount, as applicable, for such Distribution
Date.
Subordinate Prepayment
Percentage : With respect
to any Distribution Date and each Loan Group, 100% minus the
related Senior Prepayment Percentage for such Distribution Date;
provided , however , that if the aggregate
Class Principal Balance of the Senior Certificates related to
such Loan Group has been reduced to zero, then the Subordinate
Prepayment Percentage for such Loan Group will equal
100%.
Subordinate Principal
Distribution Amount :
With respect to any Distribution Date, the sum of the following
amounts for each of Loan Group 1 or Loan Group 2: (i) the
related Subordinate Percentage of the related Principal Payment
Amount, (ii) the related Subordinate Prepayment Percentage of the
related Principal Prepayment Amount, and (iii) the related
Subordinate Liquidation Amount.
Subordination Level
: With respect to any Distribution
Date and any Class of Class B Certificates, the
percentage obtained by dividing the sum of the Class Principal
Balances of all Classes of Class B Certificates which are
subordinate in right of payment to such Class by the sum of
the Class Principal Balances of all Classes of Group 1
Certificates or Group 2 Certificates, as applicable, in each
case immediately prior to such Distribution Date.
Substitution Adjustment
Amount : As defined in
Section 2.03.
Subservicer
: Any other entity with respect to
any Non-Designated Mortgage Loan under any Subservicing Agreement
applicable to such Mortgage Loan and any successors and assigns
under such Subservicing Agreement.
Subservicing Agreement
: Any servicing agreement between a
Servicer and a Subservicer pursuant to which a Servicer delegates
any of its servicing responsibilities with respect to any of the
Non-Designated Mortgage Loans.
Tax Matters Person
: The person designated as
“tax matters person” in the manner provided under
Treasury Regulation § 1.860F 4(d) and temporary Treasury
Regulation § 301.6231(a)(7)1T. Initially, the Tax Matters
Person shall be the Trust Administrator.
Telerate Page 3750
: The display designated as page
3750 on Bridge Telerate Service (or such other page as may replace
page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks).
Terminating Entity
: SPS or the entity or entities
designated pursuant to paragraphs (b) or (c) of Section 7.04
of this Agreement.
Transferring Servicer
: As defined in Section 3.19
hereof.
Transferee Affidavit and
Agreement : As defined in
Section 6.02(g)(i)(B).
Trust : The trust created pursuant to
Section 2.01 this Agreement.
Trust Administrator
: Wells Fargo Bank, N.A., a national
banking association, not in its individual capacity, but solely in
its capacity as Trust Administrator for the benefit of the
Certificateholders under this Agreement, and any successor thereto,
as provided herein.
Trust Administrator
Fee : As specified in
Section 10.05.
Trust Administrator Fee
Rate : As to each
Mortgage Loan, a per annum rate equal to 0.00%.
Trust Fund
: The corpus of the trust created by
this Agreement consisting of (a) the Mortgage Loans, including all
interest and principal received or receivable by the Depositor on
or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on
the Mortgage Loans on or before the Cut-off Date, together with the
Mortgage Files relating to the Mortgage Loans, (b) REO Property,
(c) the Collection Account, the Certificate Account, the Basis Risk
Reserve Funds and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policies
with respect to the Mortgage Loans, (e) the Depositor’s
rights under the Assignment and Assumption Agreement, (f) the
Trust’s rights under the Interest Rate Cap
Agreement, and (g) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property .
Trust Receipt and Final
Certification : As
defined in Section 2.02(a).
Trust Receipt and Initial
Certification : As
defined in Section 2.02(a).
Trustee : U.S. Bank National Association, a national
banking association, not in its individual capacity, but solely in
its capacity as trustee for the benefit of the Certificateholders
under this Agreement, and any successor thereto, as provided
herein.
Trustee Mortgage File
: The mortgage documents listed in
Section 2.01 hereof pertaining to a particular Mortgage Loan
and any additional documents required to be added to the Trustee
Mortgage File pursuant to this Agreement.
Uncertificated Accrued
Interest : With respect
to any Uncertificated Regular Interest for any Distribution Date,
one month’s interest at the related Uncertificated
Pass-Through Rate for such Distribution Date, accrued on the
Uncertificated Principal Balance or Uncertificated Notional Amount,
as applicable, immediately prior to such Distribution Date.
Uncertificated Accrued Interest for the Uncertificated Regular
Interests shall accrue on the basis of a 360 day year consisting of
twelve 30 day months. For purposes of calculating the amount of
Uncertificated Accrued Interest for the REMIC I Regular Interests
for any Distribution Date, any Prepayment Interest Shortfalls (to
the extent not covered by Compensating Interest) relating to the
Group 1 Mortgage Loans for any Distribution Date shall be allocated
among the REMIC I Regular Interests pro rata based on, and to the
extent of, Uncertificated Accrued Interest, as calculated without
application of this sentence. For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC II Regular
Interests for any Distribution Date, any Prepayment Interest
Shortfalls (to the extent not covered by Compensating Interest)
relating to the Group 2 Mortgage Loans for any Distribution Date
shall be allocated among the REMIC II Regular Interests pro rata
based on, and to the extent of, Uncertificated Accrued Interest, as
calculated without application of this sentence. Uncertificated
Accrued Interest on the Class 2-X-PO Component shall be zero.
Uncertificated Accrued Interest on the Class 2-X-IO Component for
each Distribution Date shall equal accrued interest on the Class
2-X Certificates.
Uncertificated Notional
Amount : With respect to
the Class 2-X-IO Component, the Class 2-X Notional
Amount.
Uncertificated Pass-Through
Rate : The Uncertificated
REMIC I Pass-Through Rate or Uncertificated REMIC II Pass-Through
Rate, as applicable.
Uncertificated Principal
Balance : The principal
amount of any Uncertificated Regular Interest outstanding as of any
date of determination. The Uncertificated Principal Balance of each
REMIC Regular Interest shall never be less than zero. With respect
to the Class 2-X-PO Component, the initial amount set forth with
respect thereto in the Preliminary Statement as reduced by
distributions deemed made in respect thereof pursuant to Section
4.02 and Realized Losses allocated thereto pursuant to Section
4.05.
Uncertificated Regular
Interests : The REMIC I
Regular Interests, the REMIC II Regular Interests, the Class 2-X-PO
Component and the Class 2-X-IO Component.
Uncertificated REMIC I
Pass-Through Rate : With
respect to REMIC I Regular Interests LT1 and LT2 and any
Distribution Date, a per annum rate equal to the Net WAC Rate for
Loan Group 1 for that Distribution Date. With respect to REMIC I
Regular Interest LT3 and any Distribution Date, 0.00%. With respect
to REMIC I Regular Interest LT4 and any Distribution Date, a per
annum rate equal to twice the Net WAC Rate for Loan Group 1 for
that Distribution Date.
Uncertificated REMIC II
Pass-Through Rate : With
respect to REMIC II Regular Interests LT5 and LT6 and any
Distribution Date, a per annum rate equal to the Net WAC Rate for
Loan Group 2 for that Distribution Date. With respect to REMIC II
Regular Interest LT7 and any Distribution Date, 0.00%. With respect
to REMIC II Regular Interest LT8 and any Distribution Date, a per
annum rate equal to twice the Net WAC Rate for Loan Group 2 for
that Distribution Date.
Underwriter’s
Exemption : Prohibited
Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as
amended (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of
Labor.
U.S. Person
: A citizen or resident of the
United States, a corporation, partnership or other entity treated
as a corporation or partnership for federal income tax purposes
created or organized in, or under the laws of, the United States,
any State thereof or the District of Columbia, or an estate whose
income from sources without the United States is includable in
gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or
business within the United States, any trust treated as a United
States Person under Code Section 7701(a)(30).
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, 98% of all Voting Rights shall
be allocated among the Class A Certificates (other than the
Class 3-A-X and Residual Certificates), Class M
Certificates and Class B Certificates. The portion of such 98%
Voting Rights allocated to each of the Class A Certificates
(other than the Class 3-A-X and Residual Certificates),
Class M Certificates and Class B Certificates shall be
based on the fraction, expressed as a percentage, the numerator of
which is the Class Principal Balance of each such
Class then outstanding and the denominator of which is the
aggregate Class Principal Balance of all such Classes then
outstanding. At all times during the term of this Agreement, the
Class 3-A-X Certificates shall be allocated 1% of the Voting
Rights. At all times during the term of this Agreement, the
Class 6-X Certificates shall be allocated 1% of the Voting
Rights. Voting Rights shall be allocated among the Certificates
within each Class in proportion to their respective
outstanding Class Principal Balances or Class Notional
Amounts, as applicable. The Class AR and Class AR-L
Certificates shall have no Voting Rights.
Wells Fargo
: Wells Fargo Bank, N.A.
Wells Fargo Serviced Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule, for which
Wells Fargo is the applicable Servicer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND
WARRANTIES
|
SECTION 2.01.
|
Conveyance of Trust Fund .
|
(a) The
Depositor does hereby establish the Adjustable Rate Mortgage
Trust 2005-6A (the “Trust”) and sells, transfers,
assigns, delivers, sets over and otherwise conveys to the Trustee
in trust for the benefit of the Certificateholders, without
recourse, the Depositor’s right, title and interest in and to
(a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the
Cut-off Date and any Assigned Prepayment Premiums with respect
thereto, but not including payments of principal and interest due
and payable on the Mortgage Loans on or before the Cut-off Date,
together with the Mortgage Files relating to the Mortgage Loans,
(b) REO Property, (c) the Collection Account, the Certificate
Account, the Basis Risk Reserve Funds and all amounts deposited
therein pursuant to the applicable provisions of this Agreement,
(d) any insurance policies with respect to the Mortgage Loans, (e)
the Depositor’s rights under the Assignment and Assumption
Agreement and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
property.
(b) In
connection with the transfer and assignment set forth in clause (a)
above, the Depositor has delivered or caused to be delivered to a
Custodian for the benefit of the Certificateholders, the documents
and instruments with respect to each Mortgage Loan as
assigned:
(i) (A)
the original Mortgage Note bearing all intervening endorsements and
including any riders to the Mortgage Note, endorsed “Pay to
the order of ________________, without recourse” and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit
and indemnity from the Seller stating that the original Mortgage
Note was lost or destroyed, (together with a copy of such Mortgage
Note, if available) and indemnifying the Trust Fund against any
loss, cost or liability resulting from the failure to deliver the
original Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage
Note (if any);
(iii) for
each Mortgage Loan that is not a MERS Mortgage Loan, the original
Mortgage, with evidence of recording thereon, or copies certified
by the related recording office or if the original Mortgage has not
yet been returned from the recording office, a copy certified by or
on behalf of the Seller indicating that such Mortgage has been
delivered for recording (the return directions for the original
Mortgage should indicate, when recorded, mail to the Seller) 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;
(iv) the
originals of all assumption, modification, consolidation or
extension agreements, (or, if an original of any of these documents
has not been returned from the recording office, a copy thereof
certified by or on behalf of the Seller, the original to be
delivered to the Seller forthwith after return from such recording
office) with evidence of recording thereon, if any;
(v) for
each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment of Mortgage as appropriate, in recordable form, for each
Mortgage Loan from the last assignee assigned in blank;
(vi) for
each Mortgage Loan that was not a MERS Mortgage Loan at its
origination, the originals of any intervening recorded Assignments
of Mortgage, showing a complete chain of assignment from
origination to the last assignee, including warehousing
assignments, with evidence of recording thereon (or, if an original
intervening Assignment of Mortgage has not been returned from the
recording office, a copy thereof certified by or on behalf of the
Seller, the original to be delivered to the Custodian forthwith
after return from such recording office);
(vii) the
original mortgage title insurance policy, or copy of title
commitment (or in appropriate jurisdictions, attorney’s
opinion of title and abstract of title); and
(viii) with
respect to a Cooperative Loan, if any, the originals of the
following documents or instruments:
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(A) the Cooperative Shares,
together with the Stock Power in blank;
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(B) the executed Security
Agreement;
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(C) the executed
Proprietary Lease and the Assignment of Proprietary Lease to the
originator of the Cooperative Loan;
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(D) the executed Recognition
Agreement;
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(E) Copies of the
original UCC financing statement, and any continuation statements,
filed by the originator of such Cooperative Loan as secured party,
each with evidence of recording thereof, evidencing the interest of
the originator under the Security Agreement and the Assignment of
Proprietary Lease;
(F) Copies of the
filed UCC assignments or amendments of the security interest
referenced in clause (E) above showing an unbroken chain of title
from the originator to the Trust, each with evidence of recording
thereof, evidencing the interest of the assignee under the Security
Agreement and the Assignment of Proprietary Lease;
(G) An executed
assignment of the interest of the originator in the Security
Agreement, the Assignment of Proprietary Lease and the Recognition
Agreement, showing an unbroken chain of title from the originator
to the Trust; and
(H) For any
Cooperative Loan that has been modified or amended, the original
instrument or instruments effecting such modification or
amendment.
In addition, in connection with the
assignment of any MERS Mortgage Loan, the Seller agrees that it
will cause, at the Seller’s expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller
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 or substituted in accordance
with this Agreement) the information required by the MERS®
System to (a) identify the Trustee and (b) identify the
series of the Certificates issued in connection with such Mortgage
Loans. The Trustee shall confirm, or cause the Custodian to
confirm, on the Final Certification
of the Custodian that such
assignment has occurred. The Seller further agrees that it will
not, and will not permit a Servicer to, and each related Servicer
agrees that it will not, alter the information referenced in this
paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased or
substituted in accordance with the terms of this
Agreement.
In the event the Depositor delivers
to the Custodian 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 Depositor shall
deliver or cause to be delivered to the Custodian, 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 Custodian 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) for a
Mortgage Loan that is not a MERS Mortgage Loan, 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 Custodian, in the case of
clause (a) or (b) above, such original Mortgage or such interim
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, any
title policy upon receipt from the applicable title
insurer.
As promptly as practicable
subsequent to such transfer and assignment, and in any event,
within thirty (30) days thereafter, DLJMC shall, at its expense,
(i) affix or cause to be affixed 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 DLJMC has not
received the information required to prepare such assignment in
recordable form, DLJMC’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 DLJMC need not cause to be
recorded any assignment which relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of
Counsel delivered by the Depositor (at the Depositor’s
expense) to the Trustee, the Trust Administrator and DLJMC,
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.
If any original Mortgage Note
referred to in Section 2.01(b)(i) above cannot be located, the
obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon delivery to the Custodian of a
photocopy of such Mortgage Note, if available, with a lost note
affidavit and indemnity. If any of the original Mortgage Notes for
which a lost note affidavit and indemnity was delivered to the
Custodian is subsequently located, such original Mortgage Note
shall be delivered to the Custodian within three (3) Business
Days.
(c) The
Trustee and the Trust Administrator are authorized to enter into
one or more Custodial Agreements, at the direction of the
Depositor, for the purpose of having a Custodian maintain custody
of the documents and instruments referred to in this
Section 2.01, 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, the Trust
Administrator and the Custodian.
(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 any 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 (1) the
Mortgage Loans listed in the Mortgage Loan Schedule, including all
interest and principal received or receivable by the Depositor on
or with respect to the Mortgage Loans after the Cut-off Date and
any Assigned Prepayment Premiums with respect thereto, but not
including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the
Mortgage Files relating to the Mortgage Loans, (2) REO
Property, (3) the Collection Account, the Certificate Account, the
Basis Risk Reserve Funds and all amounts deposited therein pursuant
to the applicable provisions of this Agreement, (4) any insurance
policies with respect to the Mortgage Loans, (5) the
Depositor’s rights under the Assignment and Assumption
Agreement and (6) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
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 9-313 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 (d) 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 authorizes and directs the Trustee to (i) execute
the Interest Rate Cap Agreement and (ii) to ratify, on behalf of
the Trust, the terms agreed to by the Depositor with respect to the
Interest Rate Cap Agreement. The Depositor shall pay or cause to be
paid on behalf of the Trust the payments owed to the Interest Rate
Cap Counterparty as of the Closing Date pursuant to the terms of
the Interest Rate Cap Agreement.
(f) Except
as specifically set forth in this Agreement or by separate written
agreement among the related parties hereto, the Depositor, the
Seller, each Servicer and the Master Servicer agree that the
provisions of this Agreement shall supersede any provisions in any
existing mortgage loan purchase agreement or servicing agreement
with respect to the Mortgage Loans for which the Depositor, the
Seller, a Servicer or the Master Servicer may be a
party.
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SECTION 2.02.
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Acceptance by the Trustee
.
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(a) Pursuant
to Section 4 of the LaSalle Custodial Agreement, the Custodian
agrees to execute and deliver on the Closing Date to the Depositor,
the Trustee and the Trust Administrator a Trust Receipt and 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 Trust Receipt and Initial Certification, the
Custodian acknowledges that such documents appear regular on their
face and relate to such Mortgage Loan. The Custodian shall be under
no 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 Section 6 of the
LaSalle Custodial Agreement, not later than 90 days after the
Closing Date, the Custodian shall deliver to the Depositor, the
Trustee and the Trust Administrator a Trust Receipt and Final
Certification in the form annexed hereto as Exhibit H, with
any applicable exceptions noted thereon.
Based solely upon the Trust Receipt
and Initial Certification received from the Custodian, and subject
to the provisions of Section 2.01 and any exceptions noted on
the exception report described in the next paragraph below, the
Trustee acknowledges receipt of the documents referred to in
Section 2.01 above and declares that it holds and will hold
such documents and the other documents delivered to it constituting
the Mortgage File, and that it holds or will hold all such assets
and such other assets included in the definition of the Trust Fund
in trust for the exclusive use and benefit of all present and
future Certificateholders.
If, in the course of such review,
the Custodian finds any document constituting a part of a Mortgage
File which does not meet the requirements of Section 2.01, the
Custodian shall list such as an exception in the Trust Receipt and
Final Certification pursuant to Section 6 of the LaSalle
Custodial Agreement; provided , however , that the
Custodian shall not 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 90 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 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) repurchase
such Mortgage Loan within 90 days from the date that the Seller was
notified of such defect in writing at the Purchase Price of such
Mortgage Loan; or such longer period not to exceed 720 days from
the Closing Date 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 or
title insurer, as applicable; provided , however ,
that the Seller shall have no liability for recording any
Assignment of Mortgage in favor of the Trustee or for the
Custodian’s failure to record such Assignment of Mortgage,
and provided, further, that no Seller shall be obligated to
repurchase or cure any Mortgage Loan solely as a result of the
Custodian’s failure to record such Assignment of Mortgage.
The Trust Administrator shall deliver or direct the Custodian to
deliver to each Rating Agency written notice within 270 days
from the Closing Date indicating each Mortgage Loan (a) for which a
mortgage or assignment of mortgage required to be recorded
hereunder 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 related Mortgage Loan is
returned to the Custodian. Any such substitution pursuant to clause
(a) of the preceding sentence shall not be effected prior to the
delivery to the Trustee and the Trust Administrator of (1) the
Opinion of Counsel required by Section 2.05 hereof, and (2) a
Request for Release substantially in the form of Exhibit I. No
substitution is permitted to be made in any calendar month after
the Determination Date for such month. The Purchase Price for any
such Mortgage Loan shall be deposited by the Seller in the related
Collection Account on or prior to the Business Day immediately
preceding such Distribution Date in the month following the month
during which the Seller became obligated hereunder to repurchase or
replace such Mortgage Loan and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit I
hereto, the Custodian 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.
If pursuant to the preceding
paragraph the Seller repurchases a Mortgage Loan that is a MERS
Mortgage Loan, the related Servicer shall, at the Seller’s
expense, either (i) cause MERS to execute and deliver an Assignment
of 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® System in accordance with
MERS’ rules and regulations or (ii) cause MERS to designate
on the MERS® System the Seller as the beneficial holder of
such Mortgage Loan.
(b) 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
Trust Administrator, the Depositor and any Certificateholder
against the Seller.
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SECTION 2.03.
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Representations and Warranties of the Seller,
Master Servicer and Servicers .
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(a) Each
of DLJMC, in its capacity as Seller, Wells Fargo, in its capacity
as Master Servicer, SPS, in its capacity as Servicer, Wells Fargo,
in its capacity as Servicer, and Wilshire, in its capacity as
Special Servicer, hereby makes the representations and warranties
applicable to it set forth in Schedules IIA, IIB, IIC, IID or IIE,
as applicable hereto, and by this reference incorporated herein, to
the Depositor, the Trustee and the Trust Administrator, as of the
Closing Date, or if so specified therein, as of the Cut-off Date or
such other date as may be specified. In addition, SPS, in its
capacity as Servicer, Wells Fargo, in its capacity as Servicer, and
Wilshire, in its capacity as Special Servicer, in its capacity as
Servicer, makes the representations and warranties applicable to it
set forth in Schedules IIC, IID and IIE hereto, respectively, and
by this reference incorporated herein, to the Master Servicer 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) DLJMC,
in its capacity as Seller, hereby makes the representations and
warranties set forth in Schedule III as to the Mortgage Loans and
by this reference incorporated herein, to the Depositor, the
Trustee and the Trust Administrator, 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) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b)
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;
provided that, if applicable, any breach of the representations and
warranties set forth in Schedule III(xix), III(xxii), III(xxiv),
III(xxvii), III(xxviii), III(xxix) and III(xxxii) shall be deemed
to materially and adversely affect the interests of the
Certificateholders in that Mortgage Loan.
The Seller hereby covenants that
within 90 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(b) which
materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by the Seller to the
Trust, it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such 90 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 or Mortgage Loans at the Purchase 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 and the Trust Administrator 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 or the
Trust Administrator of a Request for Release substantially in the
form of Exhibit I relating to the Deleted Mortgage Loan and
the Mortgage File for any such Qualified Substitute Mortgage Loan.
The Seller shall promptly reimburse the Trustee, the Trust
Administrator, the Special Servicer and the related Servicer (if
such Servicer is not the Seller of such Mortgage Loan) for any
actual out of pocket expenses reasonably incurred by the Trustee,
the Trust Administrator, the Special Servicer and the related
Servicer (if such Servicer is not the Seller of such Mortgage Loan)
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 the Seller’s
knowledge if it is discovered by any of the Depositor, the Master
Servicer, the Seller, any Servicer, the Special Servicer, the
Trustee or the Trust Administrator 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
Custodian 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, the Servicers and
the Trust Administrator. 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(b) with respect to
such Mortgage Loan. Upon any such substitution and the deposit to
the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the
following paragraph, the Trustee shall instruct the Custodian to
release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the
Seller and the Trustee 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 Master Servicer 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 aggregate of
any unreimbursed Advances, Servicing Advances and unpaid Servicing
Fees with respect to such Deleted Mortgage Loans shall be deposited
in the related Collection 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.
One or more mortgage loans may be
substituted for one or more Deleted Mortgage Loans. The
determination of whether a mortgage loan is a Qualified Substitute
Mortgage Loan may be satisfied on an individual basis.
Alternatively, if more than one mortgage loan is to be substituted
for one or more Deleted Mortgage Loans, the characteristics of such
mortgage loans and Deleted Mortgage Loans shall be aggregated or
calculated on a weighted average basis, as applicable, in
determining whether such mortgage loans are Qualified Substitute
Mortgage Loans.
In the event that the Seller shall
be required to repurchase a Mortgage Loan pursuant to this
Agreement, the Purchase Price therefor shall be deposited in the
related Collection 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 Purchase Price and receipt of a Request for Release in the form
of Exhibit I hereto, the Custodian 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, the Trustee or the Trust
Administrator 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, the Trust
Administrator or the Custodian for the benefit of the
Certificateholders.
(d) If
any Mortgage Loan becomes 60 days or more delinquent and remains 60
days or more delinquent on August 31, 2005, then the Seller shall
be deemed to have automatically breached the representation and
warranty set forth in clause (xvii) of Schedule III hereto;
provided , however , that in no event shall such
representation and warranty be automatically breached with respect
to Mortgage Loans constituting more than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Loans. The related
Servicer, if other than Wells Fargo Bank, N.A., shall notify the
Trust Administrator, the Seller, the Master Servicer and the
Trustee of any such delinquency and if the related Servicer is
Wells Fargo Bank, N.A., Wells Fargo Bank, N.A. shall notify the
Trust Administrator and the Trust Administrator shall forward any
such notice to the Seller, the Master Servicer and the Trustee. In
connection with any such delinquency and automatic breach, the
Seller shall be required to repurchase or replace such Mortgage
Loans with Qualified Substitute Mortgage Loans in accordance with
the terms and provisions of Section 2.03(c). A breach may
exist for purposes of Section 2.03(c), notwithstanding the
non-existence of an automatic breach for purposes of this
Section 2.03(d).
(e) With
respect to any Mortgage Loan which becomes delinquent in payment by
90 days or more or is an REO Property, the Seller shall have
the right to repurchase such Mortgage Loan from the Trust at a
price equal to the Purchase Price; provided , however
, that (i) such Mortgage Loan is still 90 days or more delinquent
or is an REO Property as of the date of such repurchase and (ii)
this repurchase option, if not theretofore exercised, shall
terminate on the date at the close of business on the 90th day
after the Mortgage Loan is 90 days delinquent or the Mortgage Loan
becomes an REO Property; provided , further , that in
no event shall such repurchase take place with respect to Mortgage
Loans constituting more than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans. This repurchase
obligation, if not exercised, shall not be reinstated thereafter
unless the delinquency is cured and the Mortgage Loan thereafter
again becomes 90 days or more delinquent or becomes an REO
Property, in which case the option shall again become exercisable
as of the first day the Mortgage Loan becomes 90 days or more
delinquent or becomes an REO Property.
In the event that the Seller
exercises such option, the Purchase Price therefor shall be
deposited in the related Collection Account and upon such deposit
of the Purchase Price and receipt of a Request for Release in the
form of Exhibit I hereto, the Custodian shall release the related
Mortgage File held for the benefit of the Certificateholders to the
Seller, and the Trustee 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 transfer title from the Trustee to the
Seller.
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SECTION 2.04.
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Representations and Warranties of the Depositor
as to the Mortgage Loans .
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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
Custodian.
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SECTION 2.05.
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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 ninety (90) days after
the Closing Date unless the Seller delivers to the Trustee and the
Trust Administrator an Opinion of Counsel, which Opinion of Counsel
shall not be at the expense of any of the Trustee, the Trust
Administrator or the Trust Fund, addressed to the Trustee and the
Trust Administrator, 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 860G(d) of
the Code, respectively, or (ii) cause each REMIC created hereunder
to fail to qualify as a REMIC at any time that any Certificates are
outstanding; provided , however , that no Opinion of
Counsel shall be required if (A) the substitution occurs within two
years of the Closing Date and (B) the substitution occurs with
respect to Mortgage Loans that are “defective” under
the Code and the Seller delivers to the Trustee and the Trust
Administrator an Officer’s Certificate substantially in the
form of Exhibit T.
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SECTION 2.06.
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Issuance of Certificates .
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The Trustee acknowledges the
assignment to it of the Mortgage Loans together with the assignment
to it of all other assets included in the Trust Fund, receipt of
which, subject to the provisions
of Section 2.02(a), is hereby
acknowledged. Concurrently with such assignment and delivery and in
exchange therefor, the Trust Administrator, pursuant to the written
request of the Depositor executed by an officer of the Depositor,
has executed the Certificates and caused them to be authenticated
and delivered to or upon the order of the Depositor in authorized
denominations which evidence ownership of the Trust Fund. The
rights of the Holders of such Certificates to receive distributions
from the Trust Fund and all ownership interests of the Holders of
the Certificates in such distributions shall be as set forth in
this Agreement.
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SECTION 2.07.
|
REMIC Provisions .
|
(a) The
Depositor hereby elects and authorizes the Trust Administrator to
treat the Trust Fund as the number of separate REMICs specified in
the Preliminary Statement under the Code and, if necessary, under
applicable state law and apply such Preliminary Statement in
determining the rights of the Interests in REMICs thereby created.
Each such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any
appropriate state return (x) for the taxable year ending on the
last day of the calendar year in which the Certificates are issued
and (y) for the taxable year ending on the last day of the calendar
year in which Certificates are first sold to a third party. The
Closing Date is hereby designated as the “startup day”
of each REMIC created hereunder within the meaning of
Section 860G(a)(9) of the Code. The “regular
interests” (within the meaning of Section 860G of the
Code) in each REMIC shall consist of the regular interests with the
terms set forth for each REMIC in the Preliminary Statement and the
Class AR and Class AR-L Certificates shall represent the
beneficial ownership of the “residual interest” in each
REMIC created hereunder. Neither the Depositor nor the Trust
Administrator nor the Trustee shall permit the creation of any
“interests” (within the meaning of Section 860G of
the Code) in any REMIC other than as set forth in the Preliminary
Statement.
(b) The
Trust Administrator shall act as the “tax matters
person” (within the meaning of the REMIC Provisions) for each
REMIC created hereunder, in the manner provided under Treasury
Regulations section 1.860F 4(d) and temporary Treasury Regulations
section 301.6231(a)(7)1T. In the event that for any reason, the
Trust Administrator is not recognized as the tax matters person
then the Trust Administrator shall act as agent for the
Class AR and the Class AR-L Certificateholder as tax
matters person. By its acceptance of a Class AR or
Class AR-L Certificate, each Holder thereof shall have agreed
to such appointment and shall have consented to the appointment of
the Trust Administrator as its agent to act on behalf of each REMIC
created hereunder pursuant to the specific duties outlined
herein.
(c) A
Holder of the Class AR or Class AR-L Certificates, by the
purchase of such Certificates, shall be deemed to have agreed to
timely pay, upon demand by the Trust Administrator, the amount of
any minimum California state franchise taxes due with respect to
each REMIC created hereunder under Sections 23151(a) and
23153(a) of the California Revenue and Taxation Code.
Notwithstanding the foregoing, the Trust Administrator shall be
authorized to retain the amount of such tax from amounts otherwise
distributable to such Holder in the event such Holder does not
promptly pay such amount upon demand by the Trust Administrator. In
the event that any other federal, state or local tax is imposed,
including without limitation taxes imposed on a “prohibited
transaction” of a REMIC as defined in Section 860F of
the Code, such tax shall be charged against amounts otherwise
available for distribution to the applicable Holder of a
Class AR or Class AR-L Certificate and then against
amounts otherwise available for distribution to the Holders of
Regular Certificates in accordance with the provisions set forth in
Section 4.01. The Trust Administrator or the Trustee shall
promptly deposit in the Certificate Account any amount of
“prohibited transaction” tax that results from a breach
of the Trust Administrator’s or the Trustee’s duties,
respectively, under this Agreement. The Master Servicer or the
related Servicer shall promptly deposit in the Certificate Account
any amount of “prohibited transaction”
tax that results from a breach of
the Master Servicer’s or such Servicer’s duties,
respectively, under this Agreement.
(d) The
Trust Administrator shall act as attorney in fact and as the tax
matters person of each REMIC created hereunder and in such capacity
the Trust Administrator shall: (i) prepare, sign and file, or cause
to be prepared, signed and filed, federal and state tax returns
using a calendar year as the taxable year for each REMIC created
hereunder when and as required by the REMIC Provisions and other
applicable federal income tax laws as the direct representative of
each such REMIC in compliance with the Code and shall provide
copies of such returns as required by the Code; (ii) make an
election, on behalf of each REMIC created hereunder, to be treated
as a REMIC on the federal tax return of such REMIC for its first
taxable year, in accordance with the REMIC Provisions; and (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to any governmental taxing authority all
information reports as and when required to be provided to them in
accordance with the REMIC Provisions. The expenses of preparing and
filing such returns shall be borne by the Trust Administrator. The
Depositor, the Master Servicer and the related Servicer shall
provide on a prompt and timely basis to the Trust Administrator or
its designee such information with respect to each REMIC created
hereunder as is in their possession and reasonably required or
requested by the Trust Administrator to enable it to perform its
obligations under this subsection.
In its capacity as attorney in fact
and as the tax matters person, the Trust Administrator shall also:
(A) act on behalf of each REMIC created hereunder in relation to
any tax matter or controversy involving the Trust Fund, (B)
represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto and (C) cause to be paid
solely from the sources provided herein the amount of any taxes
imposed on each REMIC created hereunder when and as the same shall
be due and payable (but such obligation shall not prevent the Trust
Administrator or any other appropriate Person from contesting any
such tax in appropriate proceedings and shall not prevent the Trust
Administrator from withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings).
(e) The
Trust Administrator shall provide (i) to any transferor of a
Class AR or Class AR-L Certificate such information as is
necessary for the application of any tax relating to the transfer
of a Class AR or Class AR-L Certificate to any Person who
is not a permitted transferee, (ii) to the Certificateholders such
information or reports as are required by the Code or the REMIC
Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal
Revenue Service the name, title, address and telephone number of
the person who will serve as the representative of each REMIC
created hereunder.
(f) The
Trustee, to the extent directed by the Trust Administrator, the
Depositor and the Holder of the Class AR or Class AR-L
Certificates shall take any action or cause the Trust Fund to take
any action necessary to create or maintain the status of each REMIC
created hereunder as a REMIC under the REMIC Provisions and shall
assist each other as necessary to create or maintain such status.
Neither the Trustee, to the extent directed or (in the case of a
failure to act) not directed by the Trust Administrator, nor the
Holder of the Class AR or Class AR-L Certificates shall
take any action, cause the Trust Fund to take any action or fail to
take (or fail to cause the Trust Fund to take) any action that,
under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of each REMIC created hereunder
as a REMIC or (ii) result in the imposition of a tax upon a REMIC
(including, but not limited to, the tax on prohibited transactions
as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth in Section 860G(d) of the
Code) (either such event, an “Adverse REMIC Event”)
unless the Trustee and the Trust Administrator have received an
Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a
tax.
The Trustee and the Trust
Administrator shall not take or fail to take any action (whether or
not authorized hereunder) as to which the Master Servicer, a
Servicer or the Depositor has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior
to taking any action with respect to a REMIC or their assets, or
causing any REMIC created hereunder to take any action, which is
not expressly permitted under the terms of this Agreement, the
Trustee and the Trust Administrator will consult with the Master
Servicer, the Servicers and the Depositor or their designees, in
writing, with respect to whether such action could cause an Adverse
REMIC Event to occur with respect to any REMIC created hereunder
and the Trustee and the Trust Administrator shall not take any such
action or cause that REMIC to take any such action as to which the
Master Servicer, any Servicer or the Depositor has advised it in
writing that an Adverse REMIC Event could occur.
In addition, prior to taking any
action with respect to any REMIC created hereunder or the assets
therein, or causing any REMIC created hereunder to take any action,
which is not expressly permitted under the terms of this Agreement,
the Holder of the Class AR or Class AR-L Certificates
will consult with the Trust Administrator or its designee, in
writing, with respect to whether such action could cause an Adverse
REMIC Event to occur with respect to any REMIC created hereunder,
and no such Person shall take any action or cause the Trust Fund to
take any such action as to which the Trust Administrator has
advised it in writing that an Adverse REMIC Event could occur. The
Trustee and the Trust Administrator may consult with counsel to
make such written advice, and the cost of same shall be borne by
the party seeking to take action not permitted by this
Agreement.
At all times as may be required by
the Code, the Trust Administrator will, to the extent within its
control and the scope of its duties more specifically set forth
herein, maintain substantially all of the assets of each REMIC
created hereunder as “qualified mortgages” as defined
in Section 860G(a)(3) of the Code and “permitted
investments” as defined in Section 860G(a)(5) of the
Code.
(g) In
the event that any tax is imposed on “prohibited
transactions” of any REMIC created hereunder, as defined in
Section 860F(a)(2) of the Code, on “net income from
foreclosure property” of such REMIC, as defined in
Section 860G(c) of the Code, on any contributions to a REMIC
after the Startup Day therefor pursuant to Section 860G(d) of
the Code, or any other tax is imposed by the Code or any applicable
provisions of state or local tax laws, such tax shall be charged
(i) to the related Servicer, if such Servicer has in its sole
discretion determined to indemnify the Trust Fund against such tax
or if such tax arises out of or results from a breach of such
Servicer’s duties under (x) Section 2.07(j) of this
Agreement to not enter into any arrangement by which a REMIC would
receive a fee or other compensation for services or to permit such
REMIC to receive any income from assets other than “qualified
mortgages” or “permitted investments,” (y)
Section 3.01 of this Agreement to not make or permit any
modification, waiver or amendment of any Mortgage Loan which would
cause any REMIC created hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code or (z) Section 3.11(c) of
this Agreement to not cause any REO Property to fail to qualify as
“foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or to subject any REMIC created
hereunder to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code of otherwise, (ii) to the Master
Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under this Agreement or
if the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (iii) to the Trust
Administrator, if such tax arises out of or results from a breach
by the Trust Administrator of any of its obligations under this
Article II, (iv) to the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations
under this Article II or (v) otherwise against amounts on deposit
in the Collection Account as provided by Section 3.08 and on
the Distribution Date(s) following such reimbursement the aggregate
of
such taxes shall be allocated in
reduction of the Interest Distribution Amount on each
Class entitled thereto in the same manner as if such taxes
constituted a Prepayment Interest Shortfall.
In accordance with
Section 2.07(c), the related Servicer, the Master Servicer,
the Trustee or the Trust Administrator, as applicable, shall
promptly deposit in the Certificate Account or Collection Account,
as applicable, any amount of such tax.
For purposes of this
Section 2.07(g), a tax is imposed following the final and
unappealable determination under the Code of the amount of such tax
and written notice thereof by the Tax Matters Person to the party
to be charged.
The failure of the Master Servicer
or the related Servicer to promptly deposit in the Certificate
Account or Collection Account, as applicable, any amount of such
tax shall be an Event of Default, as provided in
Section 8.01(b).
(h) The
Trust Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as
otherwise may be required by the REMIC Provisions.
(i) Following
the Startup Day, none of any Servicer, the Trustee (which will act
only at the direction of the Trust Administrator or as otherwise
specifically provided in this Agreement) or the Trust Administrator
shall accept any contributions of assets to any REMIC created
hereunder unless (subject to Section 2.05) such Servicer, the
Trustee or the Trust Administrator shall have received an Opinion
of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in a
REMIC will not cause that REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding, or subject that
REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or
ordinances.
(j) None
of any Servicer, the Trustee (which will act only at the direction
of the Trust Administrator or as otherwise specifically provided in
this Agreement) or the Trust Administrator shall (subject to
Section 2.05) enter into any arrangement by which a REMIC will
receive a fee or other compensation for services nor permit such
REMIC to receive any income from assets other than “qualified
mortgages” as defined in Section 860G(a)(3) of the Code
or “permitted investments” as defined in
Section 860G(a)(5) of the Code.
(k) Within
30 days after the Closing Date, the Trust Administrator shall apply
to the Internal Revenue Service for an employer identification
number for each REMIC created hereunder by means of a Form SS-4 or
other acceptable means and prepare and file with the Internal
Revenue Service Form 8811, “Information Return for Real
Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations” for each REMIC created
hereunder.
(l) None
of the Trustee (which will act only at the direction of the Trust
Administrator or as otherwise specifically provided in this
Agreement), the Trust Administrator, the Master Servicer or any
Servicer shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of any
REMIC created hereunder, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for a REMIC, nor sell or dispose
of any investments in the Collection Account or the Certificate
Account for gain nor accept any contributions to a REMIC after the
Closing Date (a) unless it has received an Opinion of Counsel that
such sale, disposition, substitution or
acquisition will not affect
adversely the status of any REMIC created hereunder as a REMIC or
(b) unless the Master Servicer or such Servicer has determined in
its sole discretion to indemnify the Trust Fund against such
tax.
(m) In
order to enable the Trust Administrator to perform its duties as
set forth herein, the Depositor shall provide, or cause to be
provided to the Trust Administrator, within ten days after the
Closing Date, all information or data the Trust Administrator
determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates, including, without limitation,
the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans and the Trust Administrator
shall be entitled to rely upon any and all such information and
data in the performance of its duties set forth herein. Thereafter,
the Master Servicer shall provide, promptly upon request therefor,
any such additional information or data that the Trustee or the
Trust Administrator may from time to time reasonably request in
order to enable the Trustee and the Trust Administrator to perform
their duties as set forth herein and the Trustee and the Trust
Administrator shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth
herein. DLJMC shall indemnify the Trust Administrator and hold it
harmless for any loss, liability, damage, claim or expense of the
Trust Administrator arising from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data
to the Trust Administrator on a timely basis. The Master Servicer
shall indemnify the Trustee and the Trust Administrator and hold it
harmless for any loss, liability, damage, claim or expense of the
Trustee and the Trust Administrator arising from any failure of the
Master Servicer to provide, or to cause to be provided, accurate
information or data required to be provided by the Master Servicer
to the Trustee and the Trust Administrator on a timely basis;
provided , however , that if any Servicer shall fail
to provide such information to the Master Servicer upon timely
request for such information by the Master Servicer, that Servicer
shall indemnify the Master Servicer, the Trustee and the Trust
Administrator and hold it harmless for any loss, liability, damage,
claim or expense of the Master Servicer, the Trustee and the Trust
Administrator arising from any failure of that Servicer to provide,
or to cause to be provided, the information referred to above on a
timely basis. The indemnification provisions hereunder shall
survive the termination of this Agreement and shall extend to any
co-trustee and co-Trust Administrator appointed pursuant to this
Agreement.
(n) The
Trust Administrator shall account for the rights of the Holders of
the LIBOR Certificates to receive payments in respect of Basis Risk
Shortfalls as rights in an interest rate cap contract written by
the Class 1-X or Class 2-X Certificateholders, as
applicable, in favor of the Holders of the related LIBOR
Certificates and not as an obligation of REMIC III, whose
obligation to pay such Certificates will be subject to a cap equal
to the applicable Net WAC Rate and shall account for such rights as
property held separate and apart from the regular interests as
required by Treasury Regulation section 1.860G-2(i). Any amounts
paid in respect of Basis Risk Shortfalls by REMIC III shall be
treated as a distribution to the Class 1-X or Class 2-X
Certificates. In addition, the Class 1-X and Class 2-X
Certificateholders shall be deemed to have entered into a
contractual arrangement with the Class AR and Class AR-L
Certificateholders whereby the Class AR and Class AR-L
Certificateholders agree to pay to the Class 1-X and
Class 2-X Certificateholders on each Distribution Date amounts
that would, in the absence of such contractual agreement, be
distributable with respect to the Class AR and Class AR-L
Certificates pursuant to Sections 4.01(I)(A)(b)(xiv) and
4.01(I)(A)(d)(xiv), as applicable, (which amounts are expected to
be zero). Thus each LIBOR Certificate shall be treated as
representing ownership of not only REMIC III Regular
Interests, but also ownership of an interest in an interest rate
cap contract. Each Class 1-X and Class 2-X Certificate
shall represent an obligation under an interest rate cap contract.
For purposes of determining the issue price of the REMIC III
Regular Interests, the Trust Administrator shall assume that the
interest rate cap contract has a value of $5,000.
For any Distribution Date on which
there is a payment under the Interest Rate Cap Agreement based on a
notional balance in excess of the Class Principal Balance of
the Class 2-A
Certificates, the amount
representing such excess payment shall not be an asset of the Trust
and, instead, shall be paid into and distributed out of a separate
trust created by this Agreement for the benefit of the
Class 2-A Certificates and shall be distributed to the
Class 2-A Certificates pursuant to Section 4.01(I). The
Trust Administrator shall not be responsible for any tax reporting
with respect to such separate trust.
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SECTION 2.08.
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Covenants of the Master Servicer and each
Servicer .
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The Master Servicer and each
Servicer, severally and not jointly, hereby covenants to the
Depositor, the Trustee and the Trust Administrator as
follows:
(a) Such
Servicer or the Master Servicer shall comply in the performance of
its obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Mortgage Guaranty Insurance
Policy; and
(b) No
written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any
affiliate of the Depositor, the Trustee or the Trust Administrator
and prepared by the Master Servicer or such Servicer pursuant to
this Agreement will contain any untrue statement of a material
fact.
ARTICLE III
ADMINISTRATION AND
SERVICING
OF MORTGAGE LOANS
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SECTION 3.01.
|
Servicers to Service Mortgage Loans
.
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For and on behalf of the
Certificateholders, as independent contractors of the Trust,
(i) each Servicer, severally and not jointly, shall service
and administer the related Non-Designated Mortgage Loans in
accordance with the terms of this Agreement and with Accepted
Servicing Practices, (ii) the Master Servicer shall, in accordance
with Section 3.03 of this Agreement, master service and
administer the Non-Designated Mortgage Loans by overseeing and
enforcing the servicing of the Non-Designated Mortgage Loans by the
related Servicer according to the terms of this Agreement and (iii)
the Master Servicer shall, in accordance with the Section 3.22
of this Agreement, master service and administer the Designated
Mortgage Loans by overseeing and enforcing the servicing of the
Designated Mortgage Loans by the related Designated Servicer
according to the terms of the related Designated Servicing
Agreement. The obligations of each of SPS and Wells Fargo hereunder
to service and administer the Mortgage Loans shall be limited to
the SPS Serviced Mortgage Loans and the Wells Fargo Serviced
Mortgage Loans, respectively; and with respect to the duties and
obligations of each Servicer, references herein to related
“Mortgage Loans” shall be limited to the SPS Serviced
Mortgage Loans (and the related proceeds thereof and related REO
Properties) in the case of SPS and the Wells Fargo Serviced
Mortgage Loans (and the related proceeds thereof and related REO
Properties) in the case of Wells Fargo; and in no event shall any
Servicer have any responsibility or liability with respect to any
of the other Mortgage Loans. The obligations of the Master Servicer
to master service and administer the Non-Designated Mortgage Loans
shall be limited to the Wells Fargo Serviced Mortgage Loans, the
SPS Serviced Mortgage Loans and the Special Serviced Mortgage
Loans. In connection with such servicing and administration of the
Non-Designated Mortgage Loans, the Master Servicer and 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 Trust, 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 neither the Master Servicer nor a
Servicer shall take any action that is inconsistent with or
prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests
of the Depositor, the Trustee, the Trust Administrator or the
Certificateholders under this Agreement. The Master Servicer and
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, and shall not make or permit
any modification, waiver or amendment of any Mortgage Loan that
would cause any REMIC created hereunder to fail to qualify as a
REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code. Without
limiting the generality of the foregoing, the Master Servicer and
each Servicer, in its own name or in the name of the Depositor and
the Trust, is hereby authorized and empowered by the Depositor, the
Trust and the Trust Administrator, when the Master Servicer or such
Servicer believes it appropriate in its reasonable judgment, to
execute and deliver, on behalf of the Trust, the Trustee, the Trust
Administrator, 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. The Master Servicer and each
Servicer shall prepare and deliver
to the Depositor and/or the Trustee and/or the Trust Administrator
such documents requiring execution and delivery by either or both
of them as are necessary or appropriate to enable the Master
Servicer or such Servicer to master service and administer or
service and administer the Mortgage Loans, as applicable, to the
extent that the Master Servicer or such Servicer is not permitted
to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the
Trustee or the Trust Administrator shall execute such documents and
deliver them to the Master Servicer or such Servicer.
In accordance with the standards of
the first paragraph of this Section 3.01 and unless determined
in good faith to be a Nonrecoverable Advance, each Servicer shall
advance or cause to be advanced funds as necessary for the purpose
of effecting the payment of taxes and assessments on the Mortgaged
Properties related to the Non-Designated Mortgage Loans, which
advances constitute Servicing Advances and 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. In no event will any Servicer be required to
make any Servicing Advance which would constitute a Nonrecoverable
Advance. The costs incurred by a Servicer, if any, in effecting the
timely payments of taxes and assessments on the Mortgaged
Properties related to the Non-Designated Mortgage Loans and related
insurance premiums shall not, for the purpose of calculating
monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Non-Designated Mortgage
Loans, notwithstanding that the terms of such Non-Designated
Mortgage Loans so permit. The parties to this Agreement acknowledge
that Servicing Advances shall be reimbursable pursuant to the terms
of this Agreement and agree that no Servicing Advance shall be
rejected or disallowed by any party unless it has been shown that
such Servicing Advance was not made in accordance with this
Agreement.
Each Servicer hereby acknowledges
that, to the extent such Servicer has previously serviced some or
all of the Non-Designated Mortgage Loans pursuant to another
servicing agreement, the servicing provisions contained in this
Agreement shall supersede the servicing provisions contained in
such other servicing agreement from and after the Closing Date,
except that such other servicing agreement shall survive and govern
with respect to excess servicing fees and termination without
cause. In addition, the Master Servicer hereby acknowledges that,
to the extent the Master Servicer or any Designated Servicer has
previously serviced some or all of the Designated Mortgage Loans
pursuant to another servicing agreement, the provisions contained
in the related Designated Servicing Agreement shall supersede the
provisions contained in such other servicing agreement from and
after the Closing Date.
Notwithstanding anything in this
Agreement to the contrary, the purchase of any Wells Fargo Serviced
Mortgage Loan by any Person shall be subject to the rights of Wells
Fargo to continue servicing such Wells Fargo Serviced Mortgage Loan
for the same Servicing Fee substantially in accordance with the
terms of this Agreement.
With respect to each Mortgage Loan,
the related Servicer will fully furnish, in accordance with the
Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company, on a monthly
basis.
Each Servicer is authorized and
empowered by the Trustee, on behalf of the Certificateholders and
the Trustee, in its own name or in the name of any Subservicer,
when a Servicer or any Subservicer, as the case may be, believes it
appropriate in its best judgment to register any related Mortgage
Loan on the MERS® System, or cause the removal from the
registration of such Mortgage Loan on the MERS® 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.
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SECTION 3.02.
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Subservicing; Enforcement of the Obligations of
Subservicers .
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(a) The
Non-Designated 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 a
FNMA-approved lender or a FHLMC seller/servicer in good standing.
With respect to the Non-Designated Mortgage Loans, each 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 Subservicer as fully as
if such acts and omissions were those of such Servicer. With
respect to the Non-Designated Mortgage Loans, each Servicer shall
pay all fees and expenses of any Subservicer engaged by such
Servicer from its own funds.
Notwithstanding the foregoing, with
respect to the Non-Designated Mortgage Loans, 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 Non-Designated Mortgage Loans to such
Outsourcer. In such event, the use by a Servicer of any such
Outsourcer shall not release the related 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.
Each Servicer may in connection with
its duties as Servicer hereunder enter into transactions with any
of its Affiliates relating to the Non-Designated Mortgage Loans;
provided that (a) such Servicer acts (i) in accordance with
Accepted Servicing Practices and the terms of this Agreement, and
(ii) in the ordinary course of business of such Servicer; and (b)
the terms of such transaction are no less favorable to such
Servicer than it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate of such
Servicer. Notwithstanding the preceding sentence, any such
transaction between a Servicer and any of its Affiliates 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 Affiliate with respect to such Mortgage Loans
serviced by it as fully as if such acts and omissions were those of
such Servicer. Any fees and expenses relating to such transaction
between such Servicer and its Affiliate that are not otherwise
reimbursable to such Servicer pursuant to this Agreement shall be
borne by the parties thereto and shall not be an expense or fee of
the Trust, the Depositor, the Trustee, the Trust Administrator, the
Seller or the Master Servicer.
(b) With
respect to any Non-Designated Mortgage Loans, at the cost and
expense of a Servicer, without any right of reimbursement from the
Depositor, the Trustee, the Trust Administrator or the applicable
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 Non-Designated Mortgage Loans itself. In the
event that a Servicer’s responsibilities and duties under
this Agreement are terminated pursuant to Section 8.01, and if
requested to do so by the Trustee or Trust Administrator or 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, Trust Administrator, or
the applicable Collection Account.
(c) Notwithstanding
any of the provisions of this Agreement relating to agreements or
arrangements between a Servicer and its Subservicer or a Servicer
and its Outsourcer, or any reference herein to actions taken
through the Subservicer, the Outsourcer, or otherwise, the related
Servicer shall not be relieved of its obligations to the Depositor,
the Trust, Trustee, the Trust Administrator 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 Non-Designated Mortgage Loans. Each Servicer shall be
entitled to enter into an agreement with its Subservicer and
Outsourcer for indemnification of such Servicer by such Subservicer
or Outsourcer, as applicable, 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 Non-Designated
Mortgage Loans that are received by a related Subservicer
regardless of whether such payments are remitted by the Subservicer
to such Servicer.
Any Subservicing Agreement and any
other transactions or services relating to the Non-Designated
Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the related Servicer alone, and the
Depositor, the Trustee, the Trust Administrator, the Master
Servicer, the other Servicers and the Special Servicer shall have
no obligations, duties or liabilities with respect to a Subservicer
including no obligation, duty or liability of the Depositor,
Trustee, the Trust Administrator, the Master Servicer, the Special
Servicer or other Servicers to pay a Subservicer’s fees and
expenses.
(d) SPS
is hereby authorized to enter into a financing or other facility
(any such arrangement, a “Facility”) under which (i)
SPS assigns or pledges to another person (a “Lender”)
(A) SPS’s rights under this Agreement to be reimbursed
for any Advances or Servicing Advances, and (B) any and all
rights of SPS under this Agreement resulting from SPS’s
performance of its obligations under this Agreement, including,
without limitation, any Servicing Fees, interest income, Ancillary
Income, and other payments received by SPS for servicing the SPS
Serviced Mortgage Loans and (ii) the Lender agrees to fund some or
all Advances and/or Servicing Advances required to be made by SPS
pursuant to this Agreement. No consent of the Trustee, Trust
Administrator, Certificateholders or any other party is required
before SPS may enter into a Facility; provided ,
however , that the consent of the Trust Administrator shall
be required before SPS may cause to be outstanding at one time more
than one Facility. Notwithstanding the existence of any Facility,
SPS shall remain obligated pursuant to this Agreement to make
Advances and Servicing Advances pursuant to and as required by this
Agreement, and to perform all duties and obligations of SPS under
this Agreement and shall not be relieved of such obligations by
virtue of such Facility.
(e) The
Special Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, a “Facility”)
under which (i) the Special Servicer assigns or pledges to another
person (a “Lender”) (A) the Special Servicer’s
rights under this Agreement to be reimbursed for any Advances or
Servicing Advances, and (B) any and all rights of the Special
Servicer under this Agreement resulting from the Special
Servicer’s performance of its obligations under this
Agreement, including, without limitation, any Servicing Fees,
interest income, Ancillary Income, and other payments received by
the Special Servicer for servicing the Mortgage Loans and (ii) the
Lender agrees to fund some or all Advances and/or Servicing
Advances required to be made by the Special Servicer pursuant to
this Agreement. No consent of the Trustee, Trust Administrator,
Certificateholders or any other party is required before the
Special Servicer may enter into a Facility; provided ,
however , that the consent of the
Trust Administrator shall be
required before the Special Servicer may cause to be outstanding at
one time more than one Facility. Notwithstanding the existence of
any Facility, the Special Servicer shall remain obligated pursuant
to this Agreement to make Advances and Servicing Advances pursuant
to and as required by this Agreement, and to perfor
