MERRILL LYNCH MORTGAGE INVESTORS,
INC.
Depositor
WACHOVIA BANK, NATIONAL
ASSOCIATION
Trustee
and
WELLS FARGO BANK, N.A.
Master Servicer and Securities
Administrator
______________________________________
POOLING AND SERVICING
AGREEMENT
DATED AS OF AUGUST 1,
2005
______________________________________
MERRILL LYNCH MORTGAGE INVESTORS
TRUST,
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005-A6
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
|
SECTION 2.01
|
Conveyance of Mortgage Loans.
|
|
SECTION 2.02
|
Acceptance of Mortgage Loans by
Trustee.
|
|
SECTION 2.03
|
Assignment of Interest in the Mortgage Loan
Purchase Agreement.
|
|
SECTION 2.04
|
Substitution of Mortgage Loans
|
|
SECTION 2.05
|
Issuance of Certificates.
|
|
SECTION 2.06
|
Representations and Warranties Concerning the
Depositor
|
|
SECTION 2.07
|
Representations and Warranties Concerning the
Master Servicer
|
|
SECTION 2.08
|
REMIC Elections.
|
ARTICLE III
ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
SECTION 3.01
|
Master Servicer
|
|
SECTION 3.02
|
REMIC-Related Covenants
|
|
SECTION 3.03
|
Monitoring of Servicer
|
|
SECTION 3.04
|
Fidelity Bond
|
|
SECTION 3.05
|
Power to Act; Procedures
|
|
SECTION 3.06
|
Due-on-Sale Clauses; Assumption
Agreements
|
|
SECTION 3.07
|
Release of Mortgage Files
|
|
SECTION 3.08
|
Documents, Records and Funds in Possession of
Master Servicer To Be Held for Trustee.
|
|
SECTION 3.09
|
Standard Hazard Insurance and Flood Insurance
Policies.
|
|
SECTION 3.10
|
Presentment of Claims and Collection of
Proceeds.
|
|
SECTION 3.11
|
Maintenance of the Primary Mortgage Insurance
Policies.
|
|
SECTION 3.12
|
Trustee to Retain Possession of Certain
Insurance Policies and Documents.
|
|
SECTION 3.13
|
Realization Upon Defaulted Mortgage
Loans
|
|
SECTION 3.14
|
Compensation for the Master Servicer.
|
|
SECTION 3.15
|
REO Property.
|
|
SECTION 3.16
|
Annual Officer’s Certificate as to
Compliance.
|
|
SECTION 3.17
|
Annual Independent Accountant’s Servicing
Report
|
|
SECTION 3.18
|
Reports Filed with Securities and Exchange
Commission.
|
|
SECTION 3.19
|
Rights of the NIMs Insurer.
|
ARTICLE IV
DISTRIBUTIONS
|
SECTION 4.01
|
Protected Accounts
|
|
SECTION 4.02
|
Master Servicer Collection Account.
|
|
SECTION 4.03
|
Permitted Withdrawals and Transfers from the
Master Servicer Collection Account.
|
|
SECTION 4.04
|
Distribution Account
|
|
SECTION 4.05
|
Permitted Withdrawals and Transfers from the
Distribution Account.
|
|
SECTION 4.06
|
Distributions on the REMIC Interests.
|
|
SECTION 4.07
|
Distributions.
|
|
SECTION 4.09
|
Statements to Certificateholders
|
|
SECTION 4.10
|
Monthly Advances
|
|
SECTION 4.11
|
Compensating Interest Payments
|
ARTICLE V
THE CERTIFICATES
|
SECTION 5.01
|
The Certificates.
|
|
SECTION 5.02
|
Certificate Register; Registration of Transfer
and Exchange of Certificates.
|
|
SECTION 5.03
|
Mutilated, Destroyed, Lost or Stolen
Certificates.
|
|
SECTION 5.04
|
Persons Deemed Owners.
|
|
SECTION 5.05
|
Access to List of Certificateholders’
Names and Addresses.
|
|
SECTION 5.06
|
Book-Entry Certificates.
|
|
SECTION 5.07
|
Notices to Depository.
|
|
SECTION 5.08
|
Definitive Certificates.
|
|
SECTION 5.09
|
Maintenance of Office or Agency.
|
ARTICLE VI
THE MASTER SERVICER AND THE
DEPOSITOR
|
SECTION 6.01
|
Liabilities of the Master Servicer.
|
|
SECTION 6.02
|
Merger or Consolidation of the Master
Servicer.
|
|
SECTION 6.03
|
Indemnification from the Master Servicer and the
Depositor
|
|
SECTION 6.04
|
Limitations on Liability of the Master Servicer
and Others
|
|
SECTION 6.05
|
Master Servicer Not to Resign
|
|
SECTION 6.06
|
Successor Master Servicer
|
|
SECTION 6.07
|
Sale and Assignment of Master
Servicing
|
ARTICLE VII
DEFAULT
|
SECTION 7.01
|
Events of Default
|
|
SECTION 7.02
|
Trustee to Act; Appointment of Successor
succession.
|
|
SECTION 7.03
|
Notification to Certificateholders
Agencies.
|
|
SECTION 7.04
|
Waiver of Defaults Agencies.
|
|
SECTION 7.05
|
List of Certificateholders Trustee.
|
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE
SECURITIES ADMINISTRATOR
|
SECTION 8.01
|
Duties of Trustee
|
|
SECTION 8.02
|
Certain Matters Affecting the Trustee and the
Securities Administrator
|
|
SECTION 8.03
|
Trustee and Securities Administrator Not Liable
for Certificates or Mortgage Loans
|
|
SECTION 8.04
|
Trustee and Securities Administrator May Own
Certificates
|
|
SECTION 8.05
|
Trustee’s and Securities
Administrator’s Fees and Expenses
|
|
SECTION 8.06
|
Eligibility Requirements for Trustee and
Securities Administrator
|
|
SECTION 8.08
|
Resignation and Removal of the Trustee and
Securities Administrator Servicer.
|
|
SECTION 8.09
|
Successor Trustee and Successor Securities
Administrator
|
|
SECTION 8.10
|
Merger or Consolidation of Trustee or Securities
Administrator
|
|
SECTION 8.11
|
Appointment of Co-Trustee or Separate
Trustee
|
|
SECTION 8.12
|
Federal Information Returns and Reports to
Certificateholders; REMIC Administration.
|
ARTICLE IX
TERMINATION
|
SECTION 9.01
|
Termination upon Liquidation or Repurchase of
all Mortgage Loans.
|
|
SECTION 9.02
|
Final Distribution on the
Certificates.
|
|
SECTION 9.03
|
Additional Termination Requirements.
|
ARTICLE X
MISCELLANEOUS PROVISIONS
|
SECTION 10.01
|
Intent of Parties
|
|
SECTION 10.03
|
Recordation of Agreement
|
|
SECTION 10.04
|
Limitation on Rights of
Certificateholders
|
|
SECTION 10.05
|
Acts of Certificateholders
|
|
SECTION 10.06
|
Governing Law
|
|
SECTION 10.08
|
Severability of Provisions
|
|
SECTION 10.09
|
Successors and Assigns
|
|
SECTION 10.10
|
Article and Section Headings
|
|
SECTION 10.11
|
Counterparts
|
|
SECTION 10.12
|
Notice to Rating Agencies
|
|
SECTION 10.13
|
Third Party Beneficiary
|
|
SECTION 10.14
|
Additional Rights of the NIMs
Insurer.
|
|
Exhibit
A-1
|
-
|
Form of Class A
Certificates
|
|
|
Exhibit A-2
|
-
|
Form of Class M and Class B
Certificates
|
|
|
Exhibit A-3
|
-
|
Form of Class R
Certificates
|
|
|
Exhibit A-4
|
-
|
Form of Class C and Class P
Certificates
|
|
|
Exhibit B
|
-
|
Mortgage Loan Schedule
|
|
|
Exhibit C
|
-
|
[Reserved]
|
|
|
Exhibit D
|
-
|
Request for Release of
Documents
|
|
|
Exhibit E-1
|
-
|
Form of Transfer Affidavit pursuant
to Section 860E(e)(4)
|
|
Exhibit E-2
|
-
|
Form of Transferor
Certificate
|
|
|
Exhibit F-1
|
-
|
Form of Transferor Representation
Letter
|
|
|
Exhibit F-2
|
-
|
Form of Investor Representation
Letter
|
|
|
Exhibit F-3
|
-
|
Form of Rule 144A Letter
|
|
|
Exhibit G
|
-
|
Form of Custodial
Agreement
|
|
|
Exhibit H
|
-
|
Servicing Agreements
|
|
|
Exhibit I
|
-
|
Mortgage Loan Purchase
Agreement
|
|
|
Exhibit J
|
-
|
Assignment Agreements
|
|
|
Exhibit K
|
-
|
Form Certification to be Provided by
the Master Servicer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
with Form 10-K
|
Exhibit L
|
-
|
Form of Cap Contract
|
This POOLING AND SERVICING AGREEMENT
(the “Agreement”), dated as of August 1, 2005, among
MERRILL LYNCH MORTGAGE INVESTORS, INC., a Delaware corporation, as
depositor (the “Depositor”), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee (the
“Trustee”) and WELLS FARGO BANK, N.A., a national
banking association, as master servicer (in such capacity, the
“Master Servicer”) and as securities administrator (in
such capacity, the “Securities
Administrator”).
PRELIMINARY STATEMENT
The Depositor intends to sell
mortgage pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined herein). As
provided herein, the Trustee will make, in accordance with Section
8.12, an election to treat the entire segregated pool of assets
described in the definition of REMIC 1 (as defined herein)
(excluding the Cap Contract and the Cap Contract Account), and
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
1.” The REMIC 1 Regular Interests will be the “regular
interests” in REMIC 1 and the Class R-1 Interest will be the
sole class of “residual interests” in REMIC 1 for
purposes of the REMIC Provisions (as defined herein) under the
federal income tax law. A segregated pool of assets consisting of
the REMIC 1 Regular Interests will be designated as “REMIC
2” and the REMIC Administrator will make a separate REMIC
election with respect thereto. The Class I-A-1, Class I-A-2, Class
II-A-1, Class II-A-2, Class II-A-3, Class II-A-4, Class M-1, Class
M-2, Class B-1, Class B-2, Class B-3, Class C and Class P
Certificates will be “regular interests” in REMIC 2,
and the Class R-2 Interest will be the sole class of
“residual interests” therein for purposes of the REMIC
Provisions (as defined herein) under federal income tax
law.
The following table irrevocably sets
forth the designation, the REMIC 1 Pass-Through Rate, the initial
Uncertificated Principal Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for the REMIC 1 Regular Interest. The
REMIC 1 Regular Interests will not be certificated.
REMIC I
|
Designation
|
|
REMIC 1 Pass-Through
Rate
|
|
Uncertificated
Principal Balance
|
|
Latest Possible
Maturity Date
(1)
|
|
|
AA
|
|
Variable (2)
|
|
$
|
472,047,045.78
|
|
August 25, 2035
|
|
|
I-A-1
|
|
Variable (2)
|
|
$
|
1,567,945.00
|
|
August 25, 2035
|
|
|
I-A-2
|
|
Variable (2)
|
|
$
|
174,215.00
|
|
August 25, 2035
|
|
|
II-A-1
|
|
Variable (2)
|
|
$
|
1,260,970.00
|
|
August 25, 2035
|
|
|
II-A-2
|
|
Variable (2)
|
|
$
|
745,620.00
|
|
August 25, 2035
|
|
|
II-A-3
|
|
Variable (2)
|
|
$
|
396,440.00
|
|
August 25, 2035
|
|
|
II-A-4
|
|
Variable (2)
|
|
$
|
267,005.00
|
|
August 25, 2035
|
|
|
M-1
|
|
Variable (2)
|
|
$
|
132,460.00
|
|
August 25, 2035
|
|
|
M-2
|
|
Variable (2)
|
|
$
|
105,965.00
|
|
August 25, 2035
|
|
|
B-1
|
|
Variable (2)
|
|
$
|
69,840.00
|
|
August 25, 2035
|
|
|
B-2
|
|
Variable (2)
|
|
$
|
24,080.00
|
|
August 25, 2035
|
|
|
B-3
|
|
Variable (2)
|
|
$
|
40,940.00
|
|
August 25, 2035
|
|
|
R-2
|
|
Variable (2)
|
|
$
|
0.50
|
|
August 25, 2035
|
|
|
ZZ
|
|
Variable (2)
|
|
$
|
4,848,132.68
|
|
August 25, 2035
|
|
|
P
|
|
Variable (2)
|
|
$
|
100.00
|
|
August 25, 2035
|
|
|
I-SUB
|
|
Variable (2)
|
|
$
|
1,597.60
|
|
August 25, 2035
|
|
|
I-GRP
|
|
Variable (2)
|
|
$
|
19,019.21
|
|
August 25, 2035
|
|
|
II-SUB
|
|
Variable (2)
|
|
$
|
2,448.52
|
|
August 25, 2035
|
|
|
II-GRP
|
|
Variable (2)
|
|
$
|
29,148.87
|
|
August 25, 2035
|
|
|
XX
|
|
Variable (2)
|
|
$
|
481,628,444.77
|
|
August 25, 2035
|
|
|
(1)
|
For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution
Date immediately following the latest possible maturity date for
the Mortgage Loans has been designated as the “latest
possible maturity date” for each REMIC 1 Regular
Interest.
|
|
(2)
|
Calculated in accordance with the
definition of “REMIC 1 Pass-Through Rate”
herein.
|
REMIC 2
The Certificates shall be
substantially in the forms attached hereto as exhibits. For
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates is July 25, 2035. The
Certificates shall be issuable in registered form, in the minimum
dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate of each Class may be issued in a
different amount which must be in excess of the applicable minimum
dollar denomination) and aggregate dollar denominations as set
forth in the following table:
|
Class
|
|
REMIC 2 Pass-Through
Rate
|
|
Minimum
Denomination
|
|
Integral Multiples
in
Excess of Minimum
|
|
Initial
Certificate
Principal Balance
|
|
|
|
I-A-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
313,589,000.00.00
|
|
|
I-A-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
34,843,000.00
|
|
|
II-A-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
252,194,000.00
|
|
|
II-A-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
149,124,000.00
|
|
|
II-A-3
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
79,288,000.00
|
.
|
|
II-A-4
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
53,401,000.00
|
|
|
M-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
26,492,000.00
|
|
|
M-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
21,193,000.00
|
|
|
B-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
13,968,000.00
|
|
|
B-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
4,816,000.00
|
|
|
B-3
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
8,188,000.00
|
|
|
C
|
|
Variable(2)
|
|
(3)
|
|
(3)
|
|
$
|
6,265,217.91
|
|
|
P
|
|
0.00%(4)
|
|
$
|
100.00
|
|
N/A
|
|
$
|
100.00
|
|
|
R
|
|
Adjustable Rate(1)
|
|
$
|
100.00
|
|
N/A
|
|
$
|
100.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
___________________
|
(1)
|
The Pass-Through Rate for each of
the Class A Certificates, Class B Certificates and Class M
Certificates shall equal the corresponding Pass-Through Rate for
such Class of Certificates as provided herein.
|
|
(2)
|
The Class C Certificates will accrue
interest at its variable Pass-Through Rate on the Uncertificated
Notional Amount of the Class C Certificates outstanding from time
to time which shall equal the aggregate Uncertificated Principal
Balance of the REMIC 1 Regular Interests. The Class C Certificates
will not accrue interest on its Uncertificated Principal
Balance.
|
|
(3)
|
The Class C Certificates shall not
have minimum dollar denominations or certificate notional amounts
and shall be issued in a minimum percentage interest of 10%. The
initial Overcollateralization Amount is $6,265,218.
|
|
(4)
|
The Class P Certificates are
entitled to all Prepayment Charges and are not entitled to any
interest.
|
In consideration of the mutual
agreements herein contained, the Depositor, the Master Servicer and
the Trustee hereby 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:
Accepted Master Servicing
Practices : With respect
to any Mortgage Loan, as applicable, either (x) those customary
mortgage master servicing practices of prudent mortgage servicing
institutions that master service mortgage loans of the same type
and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to
the Trustee or the Master Servicer (except in its capacity as
successor to a Servicer), or (y) as provided in the applicable
Servicing Agreement, to the extent applicable to the related
Servicer, but in no event below the standard set forth in clause
(x).
Account : The Master Servicer Collection Account,
Distribution Account and any Protected Account as the context may
require.
Accrual Period
: With respect to each Class of
Certificates (other than the Class C Certificates and Class P
Certificates) and REMIC 1 Regular Interests and any Distribution
Date, the period from and including the preceding Distribution Date
(or, in the case of the first Distribution Date, the Closing Date)
to and including the day prior to such Distribution Date. With
respect to the Class C Certificates and any Distribution Date, the
calendar month immediately preceding such Distribution Date. All
calculations of interest on each Class of Certificates and the
REMIC 1 Regular Interests will be made on the basis of a 360 day
year comprised of 12 30-day months.
Adjustable Rate Mortgage
Loan : A Mortgage Loan
identified in the Mortgage Loan Schedule as having a Mortgage Rate
which is adjustable.
Adjustment Date
: As to each Adjustable Rate
Mortgage Loan, each date on which the related Mortgage Rate is
subject to adjustment, as provided in the related Mortgage
Note.
Affiliate : With respect to any specified Person, any
other Person controlling, controlled by or under common control
with such Person. For the purposes of this definition,
“control” means the power to direct the management and
policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Aggregate Certificate Principal
Balance : For any date of
determination, the sum of the Class I-A-1 Certificate Principal
Balance, the Class I-A-2 Certificate Principal Balance, the Class
II-A-1 Certificate Principal Balance, the Class II-A-2 Certificate
Principal Balance, the Class II-A-3 Certificate Principal Balance,
the Class II-A-4 Certificate Principal Balance, the Class R
Certificate Principal Balance, the Class M-1 Certificate Principal
Balance, the Class M-2 Certificate Principal Balance, the Class B-1
Certificate Principal Balance, the Class B-2 Certificate Principal
Balance and the Class B-3 Certificate Principal Balance, in each
case as of such date of determination.
Agreement : This Pooling and Servicing Agreement and any
and all amendments or supplements hereto made in accordance with
the terms herein.
Applicable State Law
: For purposes of Section 8.12(d),
the Applicable State Law shall be (a) the law of the State of New
York and (b) such other state law whose applicability shall have
been brought to the attention of the Securities Administrator and
the Trustee by either (i) an Opinion of Counsel reasonably
acceptable to the Securities Administrator
and the Trustee delivered to it by
the Master Servicer or the Depositor, or (ii) written notice from
the appropriate taxing authority as to the applicability of such
state law.
Applied Realized Loss
Amount : With respect to
any Distribution Date, the amount, if any, by which, the sum of (i)
the Aggregate Certificate Principal Balance and (ii) the Class C
Certificate Principal Balance after distributions of principal on
such Distribution Date exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution
Date.
Appraised Value
: With respect to a Mortgage Loan
the proceeds of which were used to purchase the related Mortgaged
Property, the “Appraised Value” of a Mortgaged Property
is the lesser of (1) the appraised value based on an appraisal made
for the Seller by an independent fee appraiser at the time of the
origination of the related Mortgage Loan, and (2) the sales price
of such Mortgaged Property at such time of origination. With
respect to a Mortgage Loan the proceeds of which were used to
refinance an existing mortgage loan, the “Appraised
Value” is the appraised value of the Mortgaged Property based
upon the appraisal obtained at the time of refinancing.
Assignment
: An assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form,
sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect of record the sale of the
Mortgage Loan to the Trustee for the benefit of Certificateholders,
which assignment, notice of transfer or equivalent instrument may
be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same
county, if permitted by law and accompanied by an Opinion of
Counsel to that effect.
Assignment Agreements
: The GreenPoint Assignment
Agreement, the GMAC Assignment Agreement and the Wells Assignment
Agreement, which are attached hereto as Exhibit J.
Auction : The one-time auction conducted by the
Securities Administrator, as described in Section 9.01(b)
hereof.
Auction Date
: The date on which the Auction
occurs.
Available Funds Cap
: With respect to a Distribution
Date, the per annum rate equal to the product of (i) 12, (ii) the
quotient of (x) the total scheduled interest on the Mortgage Loans
based on the Net Mortgage Rates in effect on the related Due Date
divided by (y) the aggregate Certificate Principal Balance of the
Offered Certificates, Class B-3 Certificates and Class P
Certificates as of the first day of the related Accrual Period (or,
in the case of the first Distribution Date, as of the Cut-off Date)
and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related
Accrual Period.
Bankruptcy Code
: The United States Bankruptcy Code,
as amended as codified in 11 U.S.C. §§
101-1330.
Book-Entry
Certificates : Any of the
Certificates that shall be registered in the name of the Depository
or its nominee, the ownership of which is reflected on the books of
the Depository or on the books of a Person maintaining an account
with the Depository (directly, as a “Depository
Participant,” or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 5.06). As of the Closing Date, each of the Class A, Class
M, Class B-1 and Class B-2 Certificates constitutes a Class of
Book-Entry Certificates.
Business Day
: Any day other than (1) a Saturday
or a Sunday, or (2) a day on which banking institutions in the
State of Pennsylvania, State of Maryland, State of Minnesota and in
the State of New York are authorized or obligated by law or
executive order to be closed.
Cap Contract
: The confirmation dated August 11,
2005, between the Cap Contract Counterparty and Merrill Lynch
Mortgage Lending, Inc., as amended by the novation agreement dated
August 30, 2005, among the Cap Contract Counterparty, Merrill Lynch
Mortgage Investors, Inc. and the Trustee (in the form of Exhibit L
hereto).
Cap Contract Account
: The separate Eligible Account
created and maintained by the Trustee pursuant to Section
4.07(j)(i) in the name of the Trustee for the benefit of the Trust
Fund and designated “Wachovia Bank, National Association, as
Trustee, as trustee, in trust for registered holders of Merrill
Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed
Certificates, Series 2005-A6.” Funds in the Cap Contract
Account shall be held in trust for the Trust Fund for the uses and
purposes set forth in this Agreement.
Cap Contract
Counterparty : The Royal
Bank of Scotland plc.
Cap Contract Notional
Balance : With respect to
any Distribution Date, the Cap Contract Notional Balance set forth
for such Distribution Date in the One-Month LIBOR Cap Table
attached as an exhibit to the Cap Contract attached hereto as
Exhibit L.
Cap Contract Termination
Date : The day after the
Distribution Date in February 25, 2010.
Cap Rate : With respect to each Distribution Date, the
Cap Rate designated in the Cap Contract.
Ceiling Rate
: With respect to each Distribution
Date with respect to which payments are received on the Cap
Contract, a rate equal to 9.260% per annum.
Certificate
: Any one of the certificates of any
Class executed by the Trustee and authenticated by the Trustee in
substantially the forms attached hereto as Exhibits A-1, A-2, A-3
and A-4.
Certificate Group
: Either of the Class I-A
Certificates or the Class II-A Certificates.
Certificate Notional
Amount : With respect to
the Class C Certificates and any Distribution Date, an amount equal
to the Stated Principal Balance of the Mortgage Loans as of the
beginning of the related Due Period. The initial Certificate
Notional Amount of the Class C Certificates shall be
$963,361,417.91 Date.
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal
Balance : As to any
Certificate and as of any Distribution Date, the Initial
Certificate Principal Balance as reduced, but not below zero, by
(i) all amounts distributed on previous Distribution Dates on such
class on account of principal; and (ii) such class’s share of
any Applied Realized Loss Amounts for previous Distribution Dates.
Notwithstanding the foregoing, on any Distribution Date relating to
a Due Period in which a Subsequent Recovery has been received by
the related Servicer, the Certificate Principal Balance of any
class of Subordinate Certificates then outstanding for which any
Applied Realized Loss Amount has been allocated will be increased,
in order of seniority, by an amount equal to the lesser of (I) the
Unpaid Realized Loss Amount for such class of certificates and (II)
the total of any Subsequent Recovery distributed on such date to
the Certificateholders (reduced by the amount of the increase in
the Certificate Principal Balance of any more senior Class of
Certificates pursuant to this sentence on such Distribution
Date).
Certificate Register
: The register maintained pursuant
to Section 5.02 hereof.
Certificateholder or
Holder : The Person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository) in the
case of any Class of Regular Certificates or the Class R
Certificate, except that solely for the purpose of giving any
consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any
provision hereof that requires the consent of the Holders of
Certificates of a
particular Class as a condition to
the taking of any action hereunder. The NIMs Insurer and the
Trustee are entitled to rely conclusively on a certification of the
Depositor or any Affiliate of the Depositor in determining which
Certificates are registered in the name of an Affiliate of the
Depositor.
Class : All Certificates bearing the same Class
designation as set forth in Section 5.01 hereof.
Class I-A Certificates
: Any of the Class I-A-1, Class
I-A-2 and Class R Certificates.
Class I-A Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class I-A Certificates.
Class I-A Trigger
Event : The situation
that exists with respect to any Distribution Date (a) during the
period from the Closing Date through the Distribution Date in
September 2008, if the aggregate amount of Realized Losses incurred
from the Cut-off Date through the last day of the related Due
Period (after giving effect to scheduled payments received or
advanced on or before the related Determination Date and Principal
Prepayments received during the related Prepayment Period) divided
by the sum of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date exceeds 0.75%, or (b) on any
Distribution Date on or after October 2008, a Trigger Event is in
effect.
Class I-A-1
Certificate : Any
Certificate designated as a “Class I-A-1 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth
herein.
Class I-A-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class I-A-1 Certificates.
Class I-A-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class I-A-1 Pass-Through Rate on the Class I-A-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class I-A-1 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class I-A-1 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class I-A-1 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of
(A) the Class I-A-1 Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to
the Class I-A-1 Certificates with respect to interest on such prior
Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class I-A-1 Pass-Through
Rate for the related Accrual Period.
Class I-A-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.270% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.540% per annum.
Class I-A-1 Pass-Through
Rate : For the first
Distribution Date, 3.93938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class I-A-1
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class I-A-2
Certificate : Any
Certificate designated as a “Class I-A-2 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth
herein.
Class I-A-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class I-A-2 Certificates.
Class I-A-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class I-A-2 Pass-Through Rate on the Class I-A-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class I-A-2 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class I-A-2 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class I-A-2 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of (A) the Class
I-A-2 Current Interest with respect to prior Distribution Dates
over (B) the amount actually distributed to the Class I-A-2
Certificates with respect to interest on such prior Distribution
Dates and (2) interest on such excess (to the extent permitted by
applicable law) at the Class I-A-2 Pass-Through Rate for the
related Accrual Period.
Class I-A-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.340% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.680% per
annum.
Class I-A-2 Pass-Through
Rate : For the first
Distribution Date, 4.00938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class I-A-2
Margin, (2) the related Available Funds Cap and (3) the Maximum
Rate Cap for such Distribution Date.
Class II-A
Certificates : Any of the
Class II-A-1, Class II-A-2, Class II-A-3 and Class II-A-4
Certificates.
Class II-A-1
Certificate : Any
Certificate designated as a “Class II-A-1 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth
herein.
Class II-A-1 Certificate
Principal Balance : As of
any date of determination, the aggregate Certificate Principal
Balance of the Class II-A-1 Certificates.
Class II-A-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class II-A-1 Pass-Through Rate on the Class II-A-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class II-A-1 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class II-A-1 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class II-A-1 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of
(A) the Class II-A-1 Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to
the Class II-A-1 Certificates with respect to interest on such
prior Distribution Dates and (2) interest on such excess (to
the extent permitted by applicable law) at the Class II-A-1
Pass-Through Rate for the related Accrual Period.
Class II-A-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.120% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.240% per annum.
Class II-A-1 Pass-Through
Rate : For the first
Distribution Date, 3.78938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class II-A-1
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class II-A-2
Certificate : Any
Certificate designated as a “Class II-A-2 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to distributions as set forth
herein.
Class II-A-2 Certificate
Principal Balance : As of
any date of determination, the aggregate Certificate Principal
Balance of the Class II-A-2 Certificates.
Class II-A-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class II-A-2 Pass-Through Rate on the Class II-A-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class II-A-2 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class II-A-2 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class II-A-2 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of
(A) the Class II-A-2 Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to
the Class II-A-2 Certificates with respect to interest on such
prior Distribution Dates and (2) interest on such excess (to
the extent permitted by applicable law) at the Class II-A-2
Pass-Through Rate for the related Accrual Period.
Class II-A-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.280% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.560% per annum.
Class II-A-2 Pass-Through
Rate : For the first
Distribution Date, 3.94938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class II-A-2
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class II-A-3
Certificate : Any
Certificate designated as a “Class II-A-3 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth
herein.
Class II-A-3 Certificate
Principal Balance : As of
any date of determination, the aggregate Certificate Principal
Balance of the Class II-A-3 Certificates.
Class II-A-3 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class II-A-3 Pass-Through Rate on the Class II-A-3
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class II-A-3 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class II-A-3 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class II-A-3 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of
(A) the Class II-A-3 Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to
the Class II-A-3 Certificates with respect to interest on such
prior Distribution Dates and (2) interest on such excess (to
the extent permitted by applicable law) at the Class II-A-3
Pass-Through Rate for the related Accrual Period.
Class II-A-3 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.380% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.760% per annum.
Class II-A-3 Pass-Through
Rate : For the first
Distribution Date, 4.04938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class II-A-3
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class II-A-4
Certificate : Any
Certificate designated as a “Class II-A-4 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth
herein.
Class II-A-4 Certificate
Principal Balance : As of
any date of determination, the aggregate Certificate Principal
Balance of the Class II-A-4 Certificates.
Class II-A-4 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class II-A-4 Pass-Through Rate on the Class II-A-4
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class II-A-4 Interest Carry Forward Amount
that is recovered as a voidable preference by a trustee in
bankruptcy, less any Compensating Interest Payment allocated on
such Distribution Date to the Class II-A-4 Certificates. For
purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day
of the Accrual Period in which such Distribution Date
occurs.
Class II-A-4 Interest Carry
Forward Amount : As of
any Distribution Date, the sum of (1) the excess of
(A) the Class II-A-4 Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to
the Class II-A-4 Certificates with respect to interest on such
prior Distribution Dates and (2) interest on such excess (to
the extent permitted by applicable law) at the Class II-A-4
Pass-Through Rate for the related Accrual Period.
Class II-A-4 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.340% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.680% per annum.
Class II-A-4 Pass-Through
Rate : For the first
Distribution Date, 4.00938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class II-A-4
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class A Certificates
: Any of the Class I-A Certificates
and the Class II-A Certificates.
Class A Certificate Principal
Balance : For any date of
determination, the sum of the Class I-A-1 Certificate Principal
Balance, Class I-A-2 Certificate Principal Balance, Class II-A-1
Certificate Principal Balance, Class II-A-2 Certificate Principal
Balance, Class II-A-3 Certificate Principal Balance, Class II-A-4
Certificate Principal Balance and Class R Certificate Principal
Balance.
Class A Principal Distribution
Amount : With respect to
any Distribution Date (1) prior to the Stepdown Date or any
Distribution Date on which a Trigger Event exists, 100% of the
Principal Distribution Amount for such Distribution Date and (2) on
or after the Stepdown Date where a Trigger Event does not exist,
the excess of (A) the aggregate Certificate Principal Balance of
the Class A Certificates and Class P Certificates immediately prior
to such Distribution Date over (B) the lesser of (i) 83.20% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
end of the immediately preceding Due Period and (ii) the excess of
the aggregate Stated Principal Balance of the Mortgage Loans as of
the end of the immediately preceding Due Period over the Minimum
Required Overcollateralization Amount; provided, however, that in
no event will the Class A Principal Distribution Amount with
respect to any Distribution Date exceed the aggregate Certificate
Principal Balance of the Class A Certificates and Class P
Certificates.
Class B Certificates
: Any of the Class B-1, Class B-2 or
Class B-3 Certificates.
Class B-1 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-1
Certificates.
Class B-1 Certificate
: Any Certificate designated as a
“Class B-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-1 Certificates.
Class B-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-1 Pass-Through Rate on the Class B-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-1 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-1 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-1 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class
B-1 Current Interest with respect to prior Distribution Dates over
(B) the amount actually distributed to the Class B-1 Certificates
with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-1 Pass-Through Rate for the related
Accrual Period.
Class B-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 1.300% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 1.950% per
annum.
Class B-1 Pass-Through
Rate : For the first
Distribution Date, 4.96938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-1
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class B-1 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
aggregate of the Class A, Class P and the Class M Certificate
Principal Balances have been reduced to zero and a Trigger Event
exists, or as long as a Trigger Event does not exist, the excess of
(1) the sum of (A) the Class A Certificate Principal Balance and
Class P Certificate Principal Balance (after taking into account
distributions of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal
Distribution Amount on such Distribution Date), (C) the Class M-2
Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on
such Distribution Date), and (D) the Class B-1 Certificate
Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 96.00% of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period and (B) the excess of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on which the Certificate Principal Balance of
each Class of Class A, Class P and Class M Certificates has been
reduced to zero, the Class B-1 Principal Distribution Amount will
equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class B-1 Certificates and (y) 100% of the Principal
Distribution Amount remaining after any distributions on such Class
A, Class P and Class M Certificates and (II) in no event will the
Class B-1 Principal Distribution Amount with respect to any
Distribution Date exceed the Class B-1 Certificate Principal
Balance.
Class B-1 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-1 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-1 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-1 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class B-2 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-2
Certificates.
Class B-2 Certificate
: Any Certificate designated as a
“Class B-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-2 Certificates.
Class B-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-2 Pass-Through Rate on the Class B-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-2 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-2 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-2 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class B-2
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class B-2 Certificates with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-2 Pass-Through Rate for the related
Accrual Period.
Class B-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 1.750% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 2.625% per
annum.
Class B-2 Pass-Through
Rate : For the first
Distribution Date, 5.41938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-2
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class B-2 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
aggregate of the Class A, Class P, Class M and the Class B-1
Certificate Principal Balances have been reduced to zero and a
Trigger Event exists, or as long as a Trigger Event does not exist,
the excess of (1) the sum of (A) the Class A Certificate Principal
Balance and the Class P Certificate Principal Balance (after taking
into account distributions of the Class A Principal Distribution
Amount on such Distribution Date), (B) the Class M-1 Certificate
Principal Balance (after taking into account distributions of the
Class M-1 Principal Distribution Amount on such Distribution Date),
(C) the Class M-2 Certificate Principal Balance (after taking into
account distributions of the Class M-2 Principal Distribution
Amount on such Distribution Date), (D) the Class B-1 Certificate
Principal Balance (after taking into account distributions of the
Class B-1 Principal Distribution Amount on such Distribution Date)
and (E) the Class B-2 Certificate Principal Balance immediately
prior to such Distribution Date over (2) the lesser of (A) 97.00%
of the Stated Principal Balance of the Mortgage Loans as of the end
of the immediately preceding Due Period and (B) the excess of the
Stated Principal Balance of the Mortgage Loans as of the end of the
immediately preceding Due Period over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on
any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of Class A, Class P,
Class M and Class B-1 Certificates has been reduced to zero, the
Class B-2 Principal Distribution Amount will equal the lesser of
(x) the outstanding Certificate Principal Balance of the Class B-2
Certificates and (y) 100% of the Principal Distribution Amount
remaining after any distributions on such Class A, Class P, Class M
and Class B-1 Certificates and (II) in no event will the Class B-2
Principal Distribution Amount with respect to any Distribution Date
exceed the Class B-2 Certificate Principal Balance.
Class B-2 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-2 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-2 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-2 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class B-3 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-3
Certificates.
Class B-3 Certificate
: Any Certificate designated as a
“Class B-3 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-3 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-3 Certificates.
Class B-3 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-3 Pass-Through Rate on the Class B-3
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-3 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-3 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-3 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class B-3
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class B-3 Certificates with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-3 Pass-Through Rate for the related
Accrual Period.
Class B-3 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 1.750% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 2.625% per
annum.
Class B-3 Pass-Through
Rate : For the first
Distribution Date, 5.41938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-3
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class B-3 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A, Class P, Class M, Class B-1 and the Class B-2 Certificate
Principal Balance have been reduced to zero and a Trigger Event
exists, or as long as a Trigger Event does not exist, the excess of
(1) the sum of (A) the Class A Certificate Principal Balance and
Class P Certificate Principal Balance (after taking into account
distributions of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal
Distribution Amount on such Distribution Date), (C) the Class M-2
Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on
such Distribution Date), (D) the Class B-1 Certificate Principal
Balance (after taking into account distributions of the Class B-1
Principal Distribution Amount on such Distribution Date), (E) the
Class B-2 Certificate Principal Balance (after taking into account
distributions of the Class B-2 Principal Distribution Amount on
such Distribution Date) and (F) the Class B-3 Certificate Principal
Balance immediately prior to such Distribution Date over (2) the
lesser of (A) 98.70% of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period and (B) the excess of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on which the Certificate Principal Balance of
each Class of Class A, Class P, Class M, Class B-1 and Class B-2
Certificates has been reduced to zero, the Class B-3 Principal
Distribution Amount will equal the lesser of (x) the outstanding
Certificate Principal Balance of the Class B-3 Certificates and (y)
100% of the Principal Distribution Amount remaining after any
distributions on such Class A, Class P, Class M, Class B-1 and
Class B-2 Certificates and (II) in no event will
the Class B-3 Principal Distribution
Amount with respect to any Distribution Date exceed the Class B-3
Certificate Principal Balance.
Class B-3 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-3 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-3 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-3 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance”
Class C Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class C
Certificates.
Class C Certificate
: Any Certificate designated as a
“Class C Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class C Certificates
herein and evidencing (i) a Regular Interest in REMIC 2 and (ii)
the obligation to pay Floating Rate Certificate Carryover
amounts.
Class C Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class C Certificates.
Class C Current
Interest : As of any
Distribution Date, with respect to the Class
C Certificates, (i) the interest accrued on
the Uncertificated Notional Amount during the
related Accrual Period at the applicable Pass-Through Rate
plus any amount previously distributed with respect to interest for
such interest that has been recovered as a voidable preference by a
trustee in bankruptcy minus (ii) the sum of (a) any Prepayment
Interest Shortfall for such Distribution Date, to the extent not
covered by Compensating Interest Payments and (b)
any Relief Act Shortfalls during the related Due
Period.
Class C Distribution
Amount : With respect to
any Distribution Date, the sum of (i) the Current Interest for the
Class C Certificates for such Distribution Date, (ii) any
Overcollateralization Release Amount for such Distribution Date and
(iii) without duplication, any Subsequent Recoveries not
distributed to the Class A Certificates and Class M Certificates on
such Distribution Date; provided, however that on any Distribution
Date after the Distribution Date on which the Certificate Principal
Balances of the Class A, Class M and Class B Certificates have been
reduced to zero, the Class C Distribution Amount shall include the
Overcollateralization Amount.
Class M Certificates
: Any of the Class M-1 Certificates
and Class M-2 Certificates.
Class M Certificate Principal
Balance : For any date of
determination, the sum of the Class M-1 Certificate Principal
Balance and Class M-2 Certificate Principal Balance.
Class M-1 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class M-1
Certificates.
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class M-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class M-1 Certificates.
Class M-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class M-1 Pass-Through Rate on the Class M-1
Certificate Principal Balance as of such Distribution Date plus
the
portion of any previous
distributions on such Class in respect of Current Interest or Class
M-1 Interest Carry Forward Amount that is recovered as a voidable
preference by a trustee in bankruptcy, less any Compensating
Interest Payment allocated on such Distribution Date to the Class
M-1 Certificates. For purposes of calculating interest, principal
distributions on a Distribution Date will be deemed to have been
made on the first day of the Accrual Period in which such
Distribution Date occurs.
Class M-1 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class
M-1 Current Interest with respect to prior Distribution Dates over
(B) the amount actually distributed to the Class M-1
Certificates with respect to interest on such prior Distribution
Dates and (2) interest on such excess (to the extent permitted
by applicable law) at the Class M-1 Pass-Through Rate for the
related Accrual Period.
Class M-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.480% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.720% per
annum.
Class M-1 Pass-Through
Rate : For the first
Distribution Date, 4.14938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class M-1
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class M-1 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
aggregate of the Class A Certificate Principal Balance and Class P
Certificate Principal Balance has been reduced to zero and a
Stepdown Trigger Event exists, or as long as a Stepdown Trigger
Event does not exist, the excess of (1) the sum of (A) the Class A
Certificate Principal Balance and Class P Certificate Principal
Balance (after taking into account distributions of the Class A
Principal Distribution Amount on such Distribution Date) and (B)
the Class M-1 Certificate Principal Balance immediately prior to
such Distribution Date over (2) the lesser of (A) 88.70% of
the Stated Principal Balances of the Mortgage Loans as of the end
of the immediately preceding Due Period and (B) the excess of the
Stated Principal Balances for the Mortgage Loans as of the end of
the immediately preceding Due Period over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on
any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of Class A Certificates
and Class P Certificates has been reduced to zero, the Class M-1
Principal Distribution Amount will equal the lesser of (x) the
outstanding Certificate Principal Balance of the Class M-1
Certificates and (y) 100% of the Principal Distribution Amount
remaining after any distributions on such Class A Certificates and
Class P Certificates and (II) in no event will the Class M-1
Principal Distribution Amount with respect to any Distribution Date
exceed the Class M-1 Certificate Principal Balance.
Class M-2 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class M-2
Certificates.
Class M-2 Certificate
: Any Certificate designated as a
“Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class M-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class M-2 Certificates.
Class M-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class M-2 Pass-Through Rate on the Class M-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or Class M-2 Interest Carry Forward Amount that is
recovered as a voidable preference by a trustee in bankruptcy, less
any Compensating Interest Payment allocated on such Distribution
Date to the Class M-2 Certificates. For purposes of calculating
interest, principal
distributions on a Distribution Date
will be deemed to have been made on the first day of the Accrual
Period in which such Distribution Date occurs.
Class M-2 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class M-2
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class M-2 Certificates with
respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law)
at the Class M-2 Pass-Through Rate for the related Accrual
Period.
Class M-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.650% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.975% per
annum.
Class M-2 Pass-Through
Rate : For the first
Distribution Date, 4.31938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class M-2
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Class M-2 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A, Class P and the Class M-1 Certificate Principal Balance
have been reduced to zero and a Trigger Event exists, or as long as
a Trigger Event does not exist, the excess of (1) the sum of (A)
the Class A Certificate Principal Balance (after taking into
account distributions of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class M-1 Certificate Principal
Balance (after taking into account distributions of the Class M-1
Principal Distribution Amount on such Distribution Date) and (C)
the Class M-2 Certificate Principal Balance immediately prior to
such Distribution Date over (2) the lesser of (A) 93.10% of the
Stated Principal Balances of the Mortgage Loans as of the end of
the immediately preceding Due Period and (B) the excess of the
Stated Principal Balances of the Mortgage Loans as of the end of
the immediately preceding Due Period over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on
any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of Class A
Certificates, Class P Certificates and the Class M-1 Certificates
has been reduced to zero, the Class M-2 Principal Distribution
Amount will equal the lesser of (x) the outstanding Certificate
Principal Balance of the Class M-2 Certificates and (y) 100% of the
Principal Distribution Amount remaining after any distributions on
such Class A, Class P and Class M-1 Certificates and (II) in no
event will the Class M-2 Principal Distribution Amount with respect
to any Distribution Date exceed the Class M-2 Certificate Principal
Balance.
Class M-2 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class M-2 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class M-2 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-2 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class P Certificate
: Any Certificate designated as a
“Class P Certificate” on the face thereof, in the form
of Exhibit A-4 hereto.
Class R Certificate
: Any Certificate designated as a
“Class R Certificate” on the face thereof, in the form
of Exhibit A-3 hereto, representing the right to distributions as
set forth herein.
Class R Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class R Certificate.
Class R Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class R Pass-Through Rate on the Class R Certificate
Principal Balance as of such Distribution Date plus the portion of
any previous distributions on such Class in respect of Current
Interest or a Class R Interest Carry Forward Amount that is
recovered as a voidable preference by a trustee in bankruptcy, less
any Compensating Interest Payment allocated on
such Distribution Date to the Class
R Certificate. For purposes of calculating interest, principal
distributions on a Distribution Date will be deemed to have been
made on the first day of the Accrual Period in which such
Distribution Date occurs.
Class R-1 Interest
: The residual interest in REMIC
1.
Class R-2 Interest
: The residual interest in REMIC
2.
Class R Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class R
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class R Certificate with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class R Pass-Through Rate for the related
Accrual Period.
Class R Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.270% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.540% per
annum.
Class R Pass-Through
Rate : For the first
Distribution Date, 3.93938% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class R
Margin, (2) the Available Funds Cap and (3) the Maximum Rate Cap
for such Distribution Date.
Closing Date
: August 30, 2005.
Code : The Internal Revenue Code of 1986, including
any successor or amendatory provisions.
Commission
: The Securities and Exchange
Commission.
Compensating Interest
Payment : As defined in
Section 4.11.
Cooperative
: A corporation that has been formed
for the purpose of cooperative apartment ownership.
Cooperative Assets
: Shares issued by Cooperatives, the
related Cooperative Lease and any other collateral securing the
Cooperative Loans.
Cooperative Lease
: With respect to a Cooperative
Loan, the proprietary lease or occupancy agreement with respect to
the cooperative apartment occupied by the Mortgagor and relating to
the related Cooperative Assets, which lease or agreement confers an
exclusive right to the holder of such Cooperative Assets to occupy
such apartment.
Cooperative Loan
: The indebtedness of a Mortgagor
evidenced by a Mortgage Note which is secured by Cooperative Assets
and which is being sold to the Depositor pursuant to this
Agreement, the Mortgage Loans so sold being identified in the
Mortgage Loan Schedule.
Cooperative Stock
: With respect to a Cooperative
Loan, the single outstanding class of stock, partnership interest
or other ownership instrument in the related
Cooperative.
Corporate Trust Office
: The principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this
instrument is located at Wachovia Bank, National Association, 401
South Tryon Street, 12 th Floor, Charlotte, NC
28288-1179, Attention: Corporate Trust Group - Merrill Lynch
Mortgage Investors, Inc., MLMI Series 2005-A6, or at
such other address as the Trustee
may designate from time to time by notice to the
Certificateholders, the Depositor and the Master
Servicer.
Corresponding Class
: With respect to each REMIC 1
Regular Interest, other than REMIC 1 Regular Interests AA, ZZ,
I-SUB, I-GRP, II-SUB and II-GRP, the Certificate with the
corresponding designation.
Current Interest
: Any of the Class I-A-1 Current
Interest, the Class I-A-2 Current Interest, the Class R Current
Interest, the Class II-A-1 Current Interest, the Class II-A-2
Current Interest, the Class II-A-3 Current Interest, the Class
II-A-4 Current Interest, the Class M-1 Current Interest, the Class
M-2 Current Interest, the Class B-1 Current Interest, the Class B-2
Current Interest, the Class B-3 Current Interest and the Class C
Current Interest.
Curtailment
: Any Principal Prepayment made by a
Mortgagor which is not a Principal Prepayment in Full.
Custodial Agreement
: An agreement, dated as of the
Closing Date among the Depositor, the Master Servicer, the Trustee
and the Custodian in substantially the form of Exhibit G
hereto.
Custodian : Wells Fargo Bank, N.A., or any successor
custodian appointed pursuant to the provisions hereof and of the
Custodial Agreement.
Cut-off Date
: August 1, 2005.
Cut-off Date Principal
Balance : As to any
Mortgage Loan, the unpaid principal balance thereof as of the close
of business on the calendar day immediately preceding the Cut-off
Date after application of all payments of principal due on or prior
to the Cut-off Date, whether or not received, and all Principal
Prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due
Dates on and after the Cut-off Date.
Debt Service Reduction
: Any reduction of the Monthly
Payments which a Mortgagor is obligated to pay with respect to a
Mortgage Loan as a result of any proceeding under the Bankruptcy
Code or any other similar state law or other proceeding.
Defective Mortgage
Loan : A Mortgage Loan
replaced or to be replaced by one or more Substitute Mortgage
Loans.
Deficient Valuation
: With respect to any Mortgage Loan,
a valuation of the related Mortgaged Property by a court of
competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results
from a proceeding initiated under the Bankruptcy Code.
Definitive
Certificates : As defined
in Section 5.06.
Denomination
: With respect to each Certificate,
the amount set forth on the face thereof as the “Initial
Principal Balance of this Certificate.”
Depositor : Merrill Lynch Mortgage Investors, Inc., a
Delaware corporation, or any successor in interest.
Depository
: The initial Depository shall be
The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a
“clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Agreement
: With respect to Classes of
Book-Entry Certificates, the agreement between the Trustee and the
initial Depository.
Depository Participant
: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Designated Depository
Institution : A
depository institution (commercial bank, federal savings bank,
mutual savings bank or savings and loan association) or trust
company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date
: With respect to any Distribution
Date, the 15 th day of the month of such Distribution
Date or, if such 15 th day is not a Business Day, the
immediately preceding Business Day.
Disqualified
Organization : Any of the
following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are
subject to tax and, except for Freddie Mac or any successor
thereto, a majority of its board of directors is not selected by
such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any
of the foregoing, (iii) any organization (other than certain
farmers’ cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code or (v)
any other Person so designated by the Trustee based upon an Opinion
of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause the REMIC Trust contained in
the Trust or any Person having an ownership interest in the
Residual Certificate (other than such Person) to incur a liability
for any federal tax imposed under the Code that would not otherwise
be imposed but for the transfer of an ownership interest in a
Residual Certificate to such Person. The terms “United
States,” “State” and “international
organization” shall have the meanings set forth in Section
7701 of the Code or successor provisions.
Distribution Account
: The trust account or accounts
created and maintained pursuant to Section 4.04, which shall be
denominated “Wachovia Bank, National Association, as Trustee
f/b/o holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MLMI Series 2005-A6 - Distribution
Account.” The Distribution Account shall be an Eligible
Account.
Distribution Account Deposit
Date : The Business Day
prior to each Distribution Date.
Distribution Date
: The 25 th day of each
calendar month, or if such 25 th day is not a Business
Day, the next succeeding Business Day, commencing in September
2005.
Due Date : With respect to each Mortgage Loan, the date
in each month on which its Monthly Payment is due if such due date
is the first day of a month and otherwise is deemed to be the first
day of the following month or such other date specified in the
related Servicing Agreement.
Due Period
: With respect to any Distribution
Date, the period beginning on the second day of the calendar month
preceding the calendar month in which such Distribution Date occurs
and ending on the first day of the month in which such Distribution
Date occurs.
Eligible Account
: An account that is (i) maintained
with a depository institution the long-term unsecured debt
obligations of which are rated by each Rating Agency in one of its
two highest rating categories, or (ii) maintained with the
corporate trust department of a bank which (A) has a rating of at
least Baa3 or P-3 by Moody’s and (B) is either the Depositor
or the corporate trust department of a national bank or banking
corporation which has a rating of at least A-1 by S&P or F1 by
Fitch, or (iii) an account or accounts the deposits in which are
fully insured by the FDIC, or (iv) an account
or accounts, acceptable to each
Rating Agency without reduction or withdrawal of the rating of any
Class of Certificates, as evidenced in writing, by a depository
institution in which such accounts are insured by the FDIC (to the
limit established by the FDIC), the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to and acceptable to the Trustee, the
NIMs Insurer and each Rating Agency, the Certificateholders have a
claim with respect to the funds in such account and a perfected
first security interest against any collateral (which shall be
limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained, or
(v) maintained at an eligible institution whose commercial paper,
short-term debt or other short-term deposits are rated at least
A-1+ by S&P and F-1+ by Fitch, or (vi) maintained with a
federal or state chartered depository institution the deposits in
which are insured by the FDIC to the applicable limits and the
short-term unsecured debt obligations of which (or, in the case of
a depository institution that is a subsidiary of a holding company,
the short-term unsecured debt obligations of such holding company)
are rated A-1 by S&P or Prime-1 by Moody’s at the time
any deposits are held on deposit therein, (vii) a segregated trust
account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary
capacity, that is acceptable to the Rating Agencies or (viii)
otherwise acceptable to each Rating Agency, as evidenced by a
letter from each Rating Agency to the Trustee and the NIMs
Insurer.
ERISA : The Employee Retirement Income Security Act of
1974, including any successor or amendatory provisions.
ERISA-Qualifying
Underwriting : A best
efforts or firm commitment underwriting or private placement that
would satisfy the requirements of Prohibited Transaction Exemption
90-29, Exemption Application No. D-8012, 55 Fed. Reg. 21459 (1990),
as amended, granted to the Underwriter by the United States
Department of Labor (or any other applicable underwriter’s
exemption granted by the United States Department of Labor),
except, in relevant part, for the requirement that the certificates
have received a rating at the time of acquisition that is in one of
the three (or four, in the case of a “designated
transaction”) highest generic rating categories by at least
one of the Rating Agencies.
ERISA Restricted
Certificates : Any of the
Class C, Class P and Class R Certificates.
Event of Default
: As defined in Section 7.01
hereof.
Excess Interest
: On any Distribution Date, for each
Class of the Class A, Class M and Class B Certificates, the excess,
if any, of (1) the amount of interest such Class of Certificates is
entitled to receive on such Distribution Date at its Pass-Through
Rate over (2) the amount of interest such Class of Certificates
would have been entitled to receive on such Distribution Date had
the Pass-Through Rate for such Class been calculated using the Net
Rate instead of the Net WAC.
Excess Liquidation
Proceeds : To the extent
that such amount is not required by law to be paid to the related
Mortgagor, the amount, if any, by which Liquidation Proceeds with
respect to a Liquidated Mortgage Loan exceed the sum of (i) the
Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the
last day of the month in which the related Liquidation Date occurs,
plus (ii) related Liquidation Expenses.
Exchange Act
: The Securities Exchange Act of
1934, as amended.
Extra Principal Distribution
Amount : With respect to
any Distribution Date, the lesser of (1) the Monthly Excess
Interest Amount for such Distribution Date and (2) the excess, if
any, of (A) the sum of (x) the aggregate Certificate Principal
Balance of the Offered Certificates and Class B-3 Certificates and
Class P Certificates immediately prior to such Distribution Date
and (y) approximately $6,261,849 over (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the beginning of the
related Due Period (reduced by Realized Losses on the Mortgage
Loans during the related Prepayment Period).
Extraordinary Trust Fund
Expenses : Any amounts
reimbursable to the Master Servicer or the Depositor pursuant to
this Agreement, including but not limited to Sections 4.03, 4.05
and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this
Agreement, including but not limited to Section 9.05, and any other
costs, expenses, liabilities and losses borne by the Trust Fund
(exclusive of any cost, expense, liability or loss that is specific
to a particular Mortgage Loan or REO Property and is taken into
account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith
judgment of the Trustee, shall not, obtain reimbursement or
indemnification from any other Person.
Fannie Mae
: A federally chartered and
privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor
thereto.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
Final Certification
: The certification substantially in
the form of Exhibit Two to the Custodial Agreement.
Fitch : Fitch, Inc., or any successor in
interest.
Fixed Rate Mortgage
Loans : A Mortgage Loan
identified in the Mortgage Loan Schedule as having a Mortgage Rate
which is fixed.
Floating Rate Certificate
Carryover : With respect
to a Distribution Date, in the event that the Pass-Through Rate for
a class of Class A, Class M or Class B Certificates is based upon a
cap, the excess of (1) the amount of interest that such Class would
have been entitled to receive on such Distribution Date had the
Pass-Through Rate for that Class not been calculated based on a
cap, up to but not exceeding greatest of (x) the Maximum Rate Cap
or (y) the sum of (i) the Available Funds Cap and (ii) the product
of (A) 12 and (B) the quotient obtained by dividing (I) an amount
equal to the proceeds, if any, payable under the related Cap
Contract with respect to such Distribution Date by (II) the
aggregate Certificate Principal Balance of each of the Classes of
Offered Certificates for such Distribution Date over (2) the amount
of interest such class was entitled to receive on such Distribution
Date based on the cap, together with (i) the unpaid portion of any
such excess from prior Distribution Dates (and interest accrued
thereon at the then applicable Pass-Through Rate, without giving
effect to the related cap) and (ii) any amount previously
distributed with respect to Floating Rate Certificate Carryover for
such class that is recovered as a voidable preference by a trustee
in bankruptcy.
Freddie Mac
: A corporate instrumentality of the
United States created and existing under Title III of the Emergency
Home Finance Act of 1970, as amended, or any successor
thereto.
GMAC : GMAC Mortgage Corporation, a Pennsylvania
corporation, or its successor in interest.
GMAC Servicing
Agreement : The Sale and
Servicing Agreement, dated as of November 1, 2004 between Merrill
Lynch Bank & Co. and GMAC.
GreenPoint
: GreenPoint Mortgage Funding, Inc.,
a New York corporation, or its successor in interest.
GreenPoint Servicing
Agreement : The Master
Mortgage Loan Purchase and Servicing Agreement, dated as of April
1, 2004, among Merrill Lynch Mortgage Holdings Inc., Terwin
Advisors LLC and GreenPoint, as amended by Amendment No. 1, dated
as of August 20, 2004 among Merrill Lynch Mortgage Holdings Inc.,
Terwin Advisors LLC and GreenPoint.
Gross Margin
: As to each Adjustable Rate
Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest
Adjustment Date to determine (subject to rounding, the minimum and
maximum Mortgage Interest Rate and the Periodic Rate Cap) the
Mortgage Interest Rate until the next Interest Adjustment
Date.
Group I Mortgage Loans
: The Mortgage Loans identified as
such on the Mortgage Loan Schedule.
Group I Principal Distribution
Amount : With respect to
any Distribution Date, the amount equal to the lesser of (i) the
aggregate Certificate Principal Balance of the Class I-A
Certificates and Class P Certificates and (ii) the product of (x)
the Group I Principal Distribution Percentage and (y) the Class A
Principal Distribution Amount; provided, however, that with respect
to any Distribution Date on which the Class I-A Certificates and
Class P Certificates are outstanding and the Certificate Principal
Balances of the Class II-A Certificates have been reduced to zero,
the Group I Principal Distribution Amount will equal the Class A
Principal Distribution Amount.
Group I Principal Distribution
Percentage : With respect
to any Distribution Date, a fraction expressed as a percentage, the
numerator of which is the amount of Principal Funds received with
respect to the Group I Mortgage Loans, and the denominator of which
is the amount of Principal Funds received from all of the Mortgage
Loans in the mortgage pool.
Group II Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule.
Group II Principal Distribution
Amount : With respect to
any Distribution Date, the amount equal to the lesser of (i) the
aggregate Certificate Principal Balance of the Class II-A
Certificates and (ii) the product of (x) the Group II Principal
Distribution Percentage and (y) the Class A Principal Distribution
Amount; provided, however, that with respect to any Distribution
Date on which the Class II-A Certificates are outstanding and the
aggregate Certificate Principal Balance of the Class I-A
Certificates and Class P Certificates has been reduced to zero, the
Group II Principal Distribution Amount will equal the Class A
Principal Distribution Amount.
Group II Principal Distribution
Percentage : With respect
to any Distribution Date, a fraction expressed as a percentage, the
numerator of which is the amount of Principal Funds received with
respect to the Group II Mortgage Loans, and the denominator of
which is the amount of Principal Funds received from all of the
Mortgage Loans in the mortgage pool.
Indemnified Persons
: The Trustee, the Master Servicer,
the Depositor, the NIMs Insurer and the Securities Administrator
and their officers, directors, agents and employees and, with
respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Indenture : An indenture relating to the issuance of notes
guaranteed by the NIMs Insurer.
Index : The index, if any, specified in a Mortgage
Note by reference to which the related Mortgage Interest Rate will
be adjusted from time to time.
Initial Adjustment
Date : As to any
Adjustable Rate Mortgage Loan, the first Adjustment Date following
the origination of such Mortgage Loan.
Initial Certificate Principal
Balance : With respect to
any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date as
set forth in Section 5.01 hereof.
Initial Certification
: The certification substantially in
the form of Exhibit One to the Custodial Agreement.
Initial Mortgage Rate
: As to each Mortgage Loan, the
Mortgage Rate in effect prior to the Initial Adjustment
Date.
Initial Optional Termination
Date : The first
Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is equal to or less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
Insurance Policy
: With respect to any Mortgage Loan,
any standard hazard insurance policy, flood insurance policy or
title insurance policy.
Insurance Proceeds
: Amounts paid by the insurer under
any Insurance Policy covering any Mortgage Loan or Mortgaged
Property other than amounts required to be paid over to the
Mortgagor pursuant to law or the related Mortgage Note or Security
Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Insured Expenses
: Expenses covered by an Insurance
Policy or any other insurance policy with respect to a Mortgage
Loan or the related Mortgaged Property.
Interest Carry Forward
Amount : Any of the Class
I-A-1 Interest Carry Forward Amount, the Class I-A-2 Interest Carry
Forward Amount, the Class II-A-1 Interest Carry Forward Amount, the
Class II-A-2 Interest Carry Forward Amount, the Class II-A-3
Interest Carry Forward Amount, the Class II-A-4 Interest Carry
Forward Amount, the Class R Interest Carry Forward Amount, the
Class M-1 Interest Carry Forward Amount, the Class M-2 Interest
Carry Forward Amount, the Class B-1 Interest Carry Forward Amount,
the Class B-2 Interest Carry Forward Amount or the Class B-3
Interest Carry Forward Amount, as the case may be.
Interest Determination
Date : With respect to
the Certificates, (i) for any Accrual Period other than the first
Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period and (ii) for the first Accrual
Period, August 25, 2005.
Interest Funds
: With respect to any Distribution
Date, the sum, without duplication, of (1) all scheduled interest
due during the related Due Period and received before the related
Servicer Remittance Date or advanced on or before the related
Servicer Remittance Date less the Servicing Fee, (2) all Monthly
Advances relating to interest with respect to the Mortgage Loans
and such Distribution Date, (3) all Compensating Interest with
respect to the Mortgage Loans and such Distribution Date, (4)
Liquidation Proceeds with respect to the Mortgage Loans (to the
extent such Liquidation Proceeds relate to interest) collected
during the related Prepayment Period, (5) all proceeds of any
purchase pursuant to Section 2.02 or 2.03 during the related
Prepayment Period or pursuant to Section 9.01 not later than the
related Determination Date (to the extent that such proceeds relate
to interest) less the Servicing Fee, (6) all Prepayment Charges
received with respect to the Mortgage Loans during the related
Prepayment Period and (7) refunds, if any, of amounts paid to
either of the MI Insurers as MI Insurer Fees, less (A) all
Non-Recoverable Advances relating to interest and (B) other amounts
reimbursable to the related Servicer, the Master Servicer, the
Securities Administrator and the Trustee pursuant to this
Agreement.
Latest Possible Maturity
Date : The latest
maturity date for any Mortgage Loan in the Trust Fund plus one
month.
LIBOR Business Day
: Any day on which banks in the City
of London, England and New York City, U.S.A. are open and
conducting transactions in foreign currency and
exchange.
Liquidated Mortgage
Loan : Any defaulted
Mortgage Loan as to which the related Servicer has determined that
all amounts it expects to recover from or on account of such
Mortgage Loan have been recovered.
Liquidation Date
: With respect to any Liquidated
Mortgage Loan, the date on which the related Servicer has certified
that such Mortgage Loan has become a Liquidated Mortgage
Loan.
Liquidation Proceeds
: Amounts received in connection
with the liquidation of a defaulted Mortgage Loan, whether through
trustee’s sale, foreclosure sale, Insurance Proceeds,
condemnation proceeds or otherwise.
Loan-to-Value Ratio
: With respect to any Mortgage Loan,
the fraction, expressed as a percentage, the numerator of which is
the original principal balance of the related Mortgage Loan and the
denominator of which is the lesser of (X)
the Appraised Value of the related
Mortgaged Property and (Y) the sales price of the related Mortgaged
Property at the time of origination.
Loan Group
: Either of the Group I Mortgage
Loans or Group II Mortgage Loans.
Losses : Any losses, claims, damages, liabilities or
expenses collectively.
Marker Rate
: With respect to the Class C
Certificates and any Distribution Date, a per annum rate equal to
two (2) multiplied by the weighted average of the REMIC 1
Pass-Through Rates for each REMIC 1 Regular Interest (other than
REMIC 1 Regular Interests AA, I-SUB, I-GRP, II-SUB, II-GRP and XX),
with the rates on each such REMIC 1 Regular Interest (other than
REMIC 1 Regular Interest ZZ) subject to a cap equal to the
Pass-Through Rate for the Corresponding Class for such REMIC 1
Regular Interest, and the rate on REMIC 1 Regular Interest ZZ
subject to a cap of zero, in each case for purposes of this
calculation.
Master Servicer
: Wells Fargo Bank, N.A., a national
banking association, or its successor in interest.
Master Servicer Collection
Account : The separate
Eligible Account created and initially maintained by the Master
Servicer pursuant to Section 4.02 in the name of the Trustee for
the benefit of the Certificateholders and designated “Wells
Fargo Bank, N.A., as Master Servicer for Wachovia Bank, National
Association, as Trustee, in trust for registered holders of Merrill
Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed
Certificates, Series 2005-A6.” Funds in the Master Servicer
Collection Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Master Servicing
Compensation : The
meaning specified in Section 3.14.
Maximum Lifetime Mortgage
Rate : The minimum level
to which a Mortgage Interest Rate can adjust in accordance with its
terms, regardless of changes in the applicable Index.
Maximum Mortgage Rate
: With respect to each Mortgage
Loan, the maximum rate of interest set forth as such in the related
Mortgage Note.
Maximum Rate Cap
: With respect to a Distribution
Date, the per annum rate equal to the product of (i) 12 and (ii)
the quotient of (x) the total scheduled interest on the Mortgage
Loans based on the maximum lifetime Net Mortgage Rates of the
Mortgage Loans, divided by (y) the aggregate Certificate Principal
Balance of the Offered Certificates and Class B-3 Certificates as
of the first day of the related Accrual Period (or, in the case of
the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30, and the denominator of
which is the actual number of days in the related Accrual
Period.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS Loan : Any Mortgage Loan registered with MERS on the
MERS System.
MERS System
: The system of recording transfers
of mortgage electronically maintained by MERS.
MI Insurer Fee Rate
: With respect to each MI Mortgage
Loan, the rate specified for such Mortgage Loan on the schedule
attached to the related MI Policy, plus a rate computed so that the
related MI Insurer Fee would make the related MI Insurer whole for
any taxes imposed on such MI Insurer by the States of Kentucky or
West Virginia with respect to MI Mortgage Loans located in such
States, which rate shall be provided to the Trustee by the
applicable MI Insurer.
MI Insurer
: Radian.
MI Mortgage Loans
: The Mortgage Loans identified as
such on the Mortgage Loan Schedule.
MI Policy : A lender-paid primary mortgage insurance
policy issued by the MI Insurer in accordance with a March 29, 2002
letter between Impac Funding Corporation and the MI
Insurer.
MIN : The loan number for any MERS Loan.
Minimum Mortgage Rate
: With respect to each Mortgage
Loan, the minimum rate of interest set forth as such in the related
Mortgage Note.
Minimum Required
Overcollateralization Amount : An amount equal to the product of (x) 0.50%
and (y) the Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date.
MLMLI : Merrill Lynch Mortgage Lending,
Inc.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns.
Monthly Advance
: An advance of principal or
interest required to be made by the applicable Servicer pursuant to
the related Servicing Agreement or the Master Servicer pursuant to
Section 4.10.
Monthly Excess Interest
Amount : With respect to
each Distribution Date, the amount, if any, by which the Interest
Funds for such Distribution Date exceeds the aggregate amount
distributed on such Distribution Date pursuant to Section 4.07(a)
(other than the last clause thereof).
Monthly Payment
: With respect to any Mortgage Loan,
the scheduled monthly payment of principal and interest on such
Mortgage Loan which is payable by the related Mortgagor from time
to time under the related Mortgage Note, determined: (a) after
giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any
extension granted or agreed to by the applicable Servicer pursuant
to the related Servicing Agreement; and (c) on the assumption that
all other amounts, if any, due under such Mortgage Loan are paid
when due.
Monthly Statement
: The statement made available to
the Certificateholders pursuant to Section 4.09(a).
Moody’s
: Moody’s Investors Service,
Inc. or any successor in interest.
Mortgage : With respect to each Mortgage Loan, the
mortgage, deed of trust or other instrument with all riders
attached thereto creating a first lien or a first priority
ownership interest in an estate in fee simple in real property
securing a Mortgage Note.
Mortgage File
: The mortgage documents listed in
Section 2.01(b) hereof pertaining to a particular Mortgage Loan and
any additional documents delivered to the Trustee to be added to
the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate
: The annual rate at which interest
accrues from time to time on any Mortgage Loan pursuant to the
related Mortgage Note, which rate is equal to the “Mortgage
Interest Rate” as set forth with respect thereto on the
Mortgage Loan Schedule.
Mortgage Loan
: A mortgage loan transferred and
assigned to the Trustee pursuant to Section 2.01 or Section 2.04
and held as a part of the Trust Fund, as identified in the Mortgage
Loan Schedule, including a mortgage loan the property securing
which has become an REO Property.
Mortgage Loan Purchase
Agreement : The Mortgage
Loan Purchase Agreement dated as of August 31, 2005, between MLMLI,
as seller, and the Depositor, as purchaser, and all amendments
thereof and supplements thereto, attached as Exhibit I.
Mortgage Loan Schedule
: The schedule, attached hereto as
Exhibit B with respect to the Mortgage Loans and as amended from
time to time to reflect the repurchase or substitution of Mortgage
Loans pursuant to this Agreement.
Mortgage Note
: The originally executed note or
other evidence of the indebtedness of a Mortgagor under the related
Mortgage Loan.
Mortgage Pool
: The pool of Mortgage Loans,
identified on Exhibit B from time to time, and any REO Properties
acquired in respect thereof.
Mortgaged Property
: Land and improvements securing the
indebtedness of a Mortgagor under the related Mortgage Loan or, in
the case of REO Property, such REO Property.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note from time to time.
Mortgagor : The obligor on a Mortgage Note.
Net Liquidation
Proceeds : As to any
Liquidated Mortgage Loan, Liquidation Proceeds net of (i)
Liquidation Expenses which are payable therefrom by the related
Servicer or the Master Servicer in accordance with the related
Servicing Agreement or this Agreement and (ii) unreimbursed
advances by the related Servicer or the Master Servicer and Monthly
Advances.
Net Mortgage Rate
: With respect to each Mortgage
Loan, the Mortgage Interest Rate in effect from time to time less
the Servicing Fee Rate and MI Insurer Fee Rate, if
applicable.
Net Rate : With respect to any Distribution Date, the
weighted average Net Mortgage Rate for the Mortgage Loans
calculated based on the respective Net Mortgage Rates and the
Stated Principal Balances of such Mortgage Loans as of the
preceding Distribution Date (or, in the case of the first
Distribution Date, as of the Cut-off Date).
Net WAC : With respect to any Distribution Date, a per
annum rate equal to 12 times the quotient obtained by dividing (x)
the total scheduled interest on the Mortgage Loans based on the Net
Mortgage Rates in effect on the related Due Date by (y) the
Aggregate Certificate Principal Balance as of the preceding
Distribution Date (or, in the case of the first Distribution Date,
as of the Cut-off Date).
NIM Notes : The notes to be issued pursuant to the
Indenture.
NIMs Insurer
: Any of the one or more insurers,
if any, that is guaranteeing certain payments under any NIM Notes;
provided, that upon the payment in full of the NIM Notes, all
rights of the NIMs Insurer hereunder shall terminate.
NIMs Insurer Default
: As defined in Section
10.14.
Nonrecoverable Advance
: Any advance or Monthly Advance (i)
which was previously made or is proposed to be made by the Master
Servicer (as successor servicer), the Trustee (as successor Master
Servicer) or applicable Servicer and (ii) which, in the good faith
judgment of the Master Servicer, the Trustee or related Servicer,
will not or, in the case of a
proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer (as
successor servicer), the Trustee (as successor Master Servicer) or
related Servicer from Liquidation Proceeds, Insurance Proceeds or
future payments on the Mortgage Loan for which such advance or
Monthly Advance was made.
Offered Certificate
: The Class I-A-1, Class I-A-2,
Class II-A-1, Class II-A-2, Class II-A-3, Class II-A-4, Class M-1,
Class M-2, Class B-1 and Class B-2.
Officer’s
Certificate : A
certificate signed by the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President or Assistant Vice
President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required
by this Agreement.
One-Month LIBOR
: With respect to any Accrual
Period, the rate determined by the Securities Administrator on the
related Interest Determination Date on the basis of (a) the offered
rates for one-month United States dollar deposits, as such rates
appear on Telerate page 3750, as of 11:00 a.m. (London time) on
such Interest Determination Date or (b) if such rate does not
appear on Telerate Page 3750 as of 11:00 a.m. (London time), the
offered rates of the Reference Banks for one-month United States
dollar deposits, as such rates appear on the Reuters Screen LIBO
Page, as of 11:00 a.m. (London time) on such Interest Determination
Date. If One-Month LIBOR is determined pursuant to clause (b)
above, on each Interest Determination Date, One-Month LIBOR for the
related Accrual Period will be established by the Trustee as
follows:
(i) If
on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the arithmetic mean of such offered
quotations (rounded upwards if necessary to the nearest whole
multiple of 0.03125%).
(ii) If
on such Interest Determination Date fewer than two Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i) One-Month LIBOR as
determined on the previous Interest Determination Date and (ii) the
Reserve Interest Rate.
Opinion of Counsel
: A written opinion of counsel who
is or are acceptable to the Trustee and who, unless required to be
Independent (an “Opinion of Independent Counsel”), may
be internal counsel for the Master Servicer or the
Depositor.
Optional Termination
: The termination of the Trust Fund
hereunder pursuant to Section 9.01(a) hereof.
Optional Termination
Amount : The amount
received by the Securities Administrator in connection with any
purchase of all of the Mortgage Loans and REO Properties pursuant
to Section 9.01(b) hereof.
Optional Termination
Price : On any date after
the Initial Optional Termination Date, an amount equal to the sum
of (A) the aggregate Stated Principal Balance of each Mortgage Loan
(other than any Mortgage Loan that has become an REO Property) as
of the Distribution Date on which the proceeds of the Optional
Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Rate as of the Due Date
preceding the Distribution Date on which the proceeds of the
Optional Termination are distributed to Certificateholders and the
fair market value of any REO Property, plus accrued interest
thereon as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to Certificateholders, (B) any
unreimbursed out-of-pocket costs and expenses owed to the Master
Servicer, the Trustee or the Securities Administrator (including
any amounts incurred by the Securities Administrator in connection
with conducting the Auction), a Servicer or the Master Servicer and
any unpaid or unreimbursed Servicing Fees, Monthly Advances and
Servicing Advances, (C) any unreimbursed costs, penalties and/or
damages incurred by the Trust Fund in connection with any violation
relating to any of the Mortgage Loans of any predatory or abusive
lending law and (D) in the event an Auction has been conducted, all
reasonable fees and expenses incurred by the Trust to conduct the
Auction.
Originator
: Any of GreenPoint Mortgage
Funding, Inc., Impac Funding Corporation or Wells Fargo Bank,
N.A.
OTS : The Office of Thrift Supervision.
Outstanding
: With respect to the Certificates
as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except: (1)
Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and (2) Certificates in exchange for
which or in lieu of which other Certificates have been executed by
the Trustee and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage
Loan : With respect to
any Due Date, a Mortgage Loan which, prior to such Due Date, was
not the subject of a Principal Prepayment in Full, did not become a
Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal
Balance : As of the time
of any determination, the principal balance of a Mortgage Loan
remaining to be paid by the Mortgagor, or, in the case of an REO
Property, the principal balance of the related Mortgage Loan
remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with
respect thereto to the extent applied to principal.
Overcollateralization
Amount : As of any date
of determination, the excess of (1) the Stated Principal Balance of
the Mortgage Loans over (2) the Certificate Principal Balance of
the Certificates (other than the Class P Certificates and the Class
C Certificates).
Overcollateralization Reduction
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of
(i) the Overcollateralization Amount for such Distribution Date
(assuming that 100% of the Principal Remittance Amount is applied
as a principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date
(with the amount pursuant to clause (y) deemed to be $0 if the
Overcollateralization Amount is less than or equal to the
Overcollateralization Target Amount on that Distribution
Date).
Overcollateralization Target
Amount : With respect to
any Distribution Date, 0.65% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
Ownership Interest
: As to any Certificate, any
ownership interest in such Certificate including any interest in
such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate
: With respect to any Class A
Certificates, Class B Certificates or Class M Certificates, the
corresponding Pass-Through Rate for such Class of
Certificates.
With respect to the Class C
Certificates, a per annum rate equal to the percentage equivalent
of a fraction, (x) the numerator of which is the sum, for each
REMIC 1 Regular Interest, of the excess of the REMIC 1 Pass-Through
Rate for such REMIC 1 Regular Interest over the Marker Rate,
applied to a notional amount equal to the Uncertificated Principal
Balance of such REMIC 1 Regular Interest and (y) the denominator of
which is the aggregate Uncertificated Principal Balance of the
REMIC 1 Regular Interests.
Paying Agent
: The Trustee or any successor
Paying Agent appointed by the Trustee.
Percentage Interest
: With respect to:
(i) any
Class, the percentage interest in the undivided beneficial
ownership interest evidenced by such Class which shall be equal to
the Certificate Principal Balance of such Class divided by the
aggregate Certificate Principal Balance of all Classes;
and
(ii) any
Certificate, the Percentage Interest evidenced thereby of the
related Class shall equal the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of such Class; except that in the
case of any Class P Certificates, the Percentage Interest with
respect to such Certificate shown on the face of such
Certificate.
Periodic Rate Cap
: With respect to each Adjustable
Rate Mortgage Loan, the maximum adjustment that can be made to the
Mortgage Interest Rate on each Interest Adjustment Date in
accordance with its terms, regardless of changes in the applicable
Index.
Permitted Investments
: At any time, any one or more of
the following obligations and securities:
(i) obligations
of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United
States;
(ii) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency rating the
Certificates;
(iii) commercial
or finance company paper, other than commercial or finance company
paper issued by the Depositor, the Trustee or any of its
Affiliates, which is then receiving the highest commercial or
finance company paper rating of each such Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances
(other than banker’s acceptances issued by the Trustee or any
of its Affiliates) issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company are then rated one of the
two highest long-term and the highest short-term ratings of each
such Rating Agency for such securities;
(v) demand
or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company or
other corporation rated in the two highest long-term or the highest
short-term ratings of each Rating Agency containing, at the time of
the issuance of such agreements, such terms and conditions as will
not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any such Rating Agency as evidenced
by a letter from each Rating Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
clause (v) above;
(viii) securities
(other than stripped bonds, stripped coupons or instruments sold at
a purchase price in excess of 115% of the face amount thereof)
bearing interest or sold at a discount issued by any corporation,
other than the Trustee or any of its Affiliates, incorporated under
the laws of the United States or any state thereof which, at the
time of such investment, have one of the two highest long term
ratings of each Rating Agency;
(ix) interests
in any money market fund (including those managed or advised by the
Master Servicer or the Trustee or any of their respective
affiliates) which at the date of acquisition of the interests in
such fund and throughout the time such interests are held in such
fund has the highest applicable long term rating by each Rating
Agency rating such fund; and
(x) short
term investment funds sponsored by any trust company or national
banking association incorporated under the laws of the United
States or any state thereof, other than the Trustee or any of its
Affiliates, which on the date of acquisition has been rated by each
such Rating Agency in their respective highest applicable rating
category;
provided, that no such instrument
shall be a Permitted Investment if such instrument (i) evidences
the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a
premium or above par or (iii) is purchased at a deep discount;
provided, further, that no such instrument shall be a Permitted
Investment (A) if such instrument evidences principal and interest
payments derived from obligations underlying such instrument and
the 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, or (B) if it may be redeemed at
a price below the purchase price (the foregoing clause (B) not to
apply to investments in units of money market funds pursuant to
clause (ix) above); and provided, further, (I) that no amount
beneficially owned by any REMIC (including, without limitation, any
amounts collected by a Servicer or Master Servicer but not yet
deposited in the Master Servicer Collection Account) may be
invested in investments (other than money market funds) treated as
equity interests for Federal income tax purposes, unless such
Servicer and/or the Trustee shall receive an Opinion of Counsel
acceptable to such Servicer and/or the Trustee, at the expense of
the party requesting that such investment be made, to the effect
that such investment will not adversely affect the status of the
any REMIC provided for herein as a REMIC under the Code or result
in imposition of a tax on the Trust Fund or any REMIC provided for
herein and (II) each such investment must be a “permitted
investment” within the meaning of Section 860G(a)(5) of the
Code. Permitted Investments that are subject to prepayment or call
may not be purchased at a price in excess of par.
Permitted Transferee
: Any Person other than (i) the
United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing, (ii) a foreign
government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section
521 of the Code) that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to the
Class R Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, and (v) a Person
that is not a citizen or resident of the United States, a
corporation or partnership (or other entity treated as a
corporation or partnership for United States federal income tax
purposes) created or organized in or under the laws of the United
States or any State thereof or the District of Columbia 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, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons
have authority to control all substantial decisions of the trust,
unless, in the case of this clause (v), such Person has furnished
the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or applicable successor form. The terms
“United States,” “State” and
“International Organization” shall have the meanings
set forth in Section 7701 of the Code. A corporation will not be
treated as an instrumentality of the United States or of any State
thereof for these purposes if all of its activities are subject to
tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected
by such government unit.
Person : Any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any
agency or political subdivision thereof.
Pool Stated Principal
Balance : As to any
Distribution Date, the aggregate of the Stated Principal Balances,
as of such Distribution Date, of the Mortgage Loans that were
Outstanding Mortgage Loans as of such date.
Prepayment Assumption
: A rate or rates of prepayment, as
described in the Prospectus Supplement in the definition of
“Modeling Assumptions,” relating to the Offered
Certificates.
Prepayment Charges
: Any prepayment premium, fee or
charge payable by a Mortgagor in connection with any Principal
Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note or Mortgage, as applicable, as identified on the
Mortgage Loan Schedule.
Prepayment Interest
Shortfall : With respect
to any Distribution Date, for each Mortgage Loan that was the
subject of a Principal Prepayment in full (other than a Principal
Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03 or 9.01 hereof), the amount, if any,
by which (i) one month’s interest at the applicable Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
as of the preceding Distribution Date or in the case of a partial
Principal Prepayment, on the amount of such prepayment, exceeds
(ii) the amount of interest paid or collected in connection with
such Principal Prepayment.
Prepayment Period
: As to any Distribution Date, the
period beginning with the opening of business on the 1
st day of the calendar month preceding the month in
which such Distribution Date occurs (or in the case of the first
Distribution Date, beginning with the opening of business on the
Cut-off Date) and ending on the close of business on the last day
of the month in which such Distribution Date occurs.
Primary Mortgage Insurance
Policy : Any primary
mortgage guaranty insurance policy issued in connection with a
Mortgage Loan which provides compensation to a Mortgage Note holder
in the event of default by the obligor under such Mortgage Note or
the related Security Instrument, if any or any replacement policy
therefor through the related Interest Accrual Period for such Class
relating to a Distribution Date.
Principal Distribution
Amount : With respect to
each Distribution Date, the sum of (i) the Principal Funds for such
Distribution Date and (ii) any Extra Principal Distribution Amount
for such Distribution Date.
Principal Funds
: With respect to the Mortgage Loans
and any Distribution Date, the sum, without duplication, of (1) all
scheduled principal due during the related Due Period and received
before the related Servicer Remittance Date or advanced on or
before the related Servicer Remittance Date, (2) all Principal
Prepayments collected in the related Prepayment Period, (3) the
Stated Principal Balance of each Mortgage Loan that was purchased
by the Depositor or a Servicer during the related Prepayment Period
or, in the case of a purchase pursuant to Section 9.01, on any
Business Day prior to such Distribution Date, (4) the amount, if
any, by which the aggregate unpaid principal balance of any
replacement Mortgage Loan is less than the aggregate unpaid
principal balance of any Mortgage Loans delivered by the Seller in
connection with a substitution of a Mortgage Loan pursuant to
Section 2.03(c), (5) all Liquidation Proceeds collected during the
related Prepayment Period (to the extent such Liquidation Proceeds
related to principal), (6) all Subsequent Recoveries received
during the related Due Period and (7) all other collections and
recoveries in respect of principal during the related Prepayment
Period less (A) all Non-Recoverable Advances relating to principal
with respect to the Mortgage Loans and (B) all other amounts
reimbursable to the Master Servicer, Securities Administrator, any
Servicer and the Trustee pursuant to this Agreement and allocable
to principal.
Principal Prepayment
: Any payment (whether partial or
full) or other recovery of principal on a Mortgage Loan which is
received in advance of its scheduled Due Date to the extent that it
is not accompanied by an amount as to interest representing
scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of
Liquidation Proceeds.
Principal Prepayment in
Full : Any Principal
Prepayment made by a Mortgagor of the entire unpaid principal
balance of the Mortgage Loan.
Principal Remittance
Amount : With respect to
each Distribution Date, the sum of the amounts listed in clauses
(1) through (7) of the definition of Principal Funds.
Prospectus Supplement
: The Prospectus Supplement dated
August 26, 2005 relating to the public offering of the Offered
Certificates.
Protected Account
: An account established and
maintained for the benefit of Certificateholders by a Servicer with
respect to the Mortgage Loans and with respect to REO Property
pursuant to the related Servicing Agreement. The Protected Account
shall be an Eligible Account.
PUD : A Planned Unit Development.
Purchase Price
: With respect to any Mortgage Loan
or REO Property to be purchased pursuant to or as contemplated by
Section 2.03 or 10.01, and as confirmed by an Officers’
Certificate from the Master Servicer to the Trustee, an amount
equal to the sum of (i) 100% of the Stated Principal Balance
thereof as of the date of purchase (or such other price as provided
in Section 10.01), (ii) accrued interest on such Stated Principal
Balance at the applicable Mortgage Interest Rate in effect from
time to time from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an advance by the related
Servicer or Master Servicer, which payment or advance had as of the
date of purchase been distributed to Certificateholders, through
the end of the calendar month in which the purchase is to be
effected less any unreimbursed Monthly Advances and any unpaid
Servicing Fees payable to the purchaser of the Mortgage Loan and
(iii) any costs and damages incurred by the Trust in connection
with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
Radian : Radian Guaranty Inc., a Pennsylvania insurance
corporation, or its successor in interest.
Rating Agency
: Each of S&P and Moody’s.
If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally
recognized statistical rating organization, or other comparable
Person, designated by the Depositor, notice of which designation
shall be given to the Trustee. References herein to a given rating
category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss
: With respect to a Liquidated
Mortgage Loan, the amount by which the remaining unpaid principal
balance of the Mortgage Loan exceeds the amount of Liquidation
Proceeds applied to the principal balance of the related Mortgage
Loan. To the extent the Master Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss with respect to that Mortgage Loan will be reduced to
the extent such recoveries are applied to reduce the Class
Certificate Balance of any Class of Certificates on any
Distribution Date.
Record Date
: With respect to any Distribution
Date, the close of business on the Business Day immediately
preceding the related Distribution Date (or, in the case of the
first Distribution Date, the Closing Date).
Reference Banks
: Barclays Bank PLC, JPMorgan Chase
Bank, N.A., Citibank, N.A., Wells Fargo Bank, N.A. and NatWest,
N.A.; provided that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by
the Trustee with the consent of the NIMs Insurer which are engaged
in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in
London, England and (ii) whose quotations appear on the Reuters
Screen LIBO Page on the relevant Interest Determination Date and
(iii) which have been designated as such by the
Servicer.
Refinanced Mortgage
Loan : A Mortgage Loan
the proceeds of which were not used to purchase the related
Mortgaged Property.
Regular Certificate
: Any one of the Class A, Class M,
and Class B Certificates.
Relief Act
: The Servicemembers Civil Relief
Act or any similar state or local law.
Relief Act Shortfall
: With respect to any Distribution
Date and any Mortgage Loan, any reduction in the amount of interest
or principal collectible on such Mortgage Loan for the most
recently ended calendar month as a result of the application of the
Relief Act.
REMIC : A “real estate mortgage investment
conduit” within the meaning of section 860D of the Code.
References herein to “the REMICs” or “a
REMIC” shall mean any of (or, as the context requires, all
of) REMIC 1 and REMIC 2.
REMIC 1 : As described in the Preliminary Statement and
Section 2.08.
REMIC 1 Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Uncertificated Principal Balance of the REMIC 1
Regular Interests (other than REMIC 1 Regular Interests I-SUB,
I-GRP, II-SUB, II-GRP and XX) then outstanding and (ii) the REMIC 1
Pass-Through Rate for REMIC 1 Regular Interest AA minus the Marker
Rate divided by (b) 12.
REMIC 1 Marker Allocation
Percentage : 50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC 1 Regular Interest AA, REMIC 1 Regular
Interest I-A-1, REMIC 1 Regular Interest I-A-2, REMIC 1 Regular
Interest II-A-1, REMIC 1 Regular Interest II-A-2, REMIC 1 Regular
Interest II-A-3, REMIC 1 Regular Interest II-A-4, REMIC 1 Regular
Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular
Interest B-1, REMIC 1 Regular Interest B-2, REMIC 1 Regular
Interest B-3, REMIC 1 Regular Interest R-2 and REMIC 1 Regular
Interest ZZ.
REMIC 1 Overcollateralized
Amount : With respect to
any date of determination, (i) 1% of the aggregate Uncertificated
Principal Balances of the REMIC 1 Regular Interests minus (ii) the
aggregate Uncertificated Principal Balances of the REMIC 1 Regular
Interests (other than REMIC 1 Regular Interests AA, ZZ, I-SUB,
I-GRP, II-SUB, II-GRP and XX), in each case as of such date of
determination.
REMIC 1 Pass-Through
Rate : With respect to
any Distribution Date and any REMIC 1 Regular Interest (other than
REMIC 1 Regular Interest I-GRP and II-GRP), a per annum rate equal
to the rate specified in the definition of Net Rate. With respect
to REMIC 1 Regular Interest I-GRP, a per annum rate equal to the
weighted average of the pass-through rates on the Group I Mortgage
Loans, weighed on the basis of the principal balance of such
Mortgage Loans. With respect to REMIC 1 Regular Interest II-GRP, a
per annum rate equal to the weighted average of the pass-through
rates on the Group II Mortgage Loans, weighed on the basis of the
principal balance of such Mortgage Loans.
REMIC 1 Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to the product of (i) 0.50%
of the aggregate Stated Principal Balance of the Mortgage Loans
then outstanding and (ii) 1 minus a fraction, the numerator of
which is two times the Uncertificated Principal Balances of REMIC 1
Regular Interests I-A-1, I-A-2, II-A-1, II-A-2, II-A-3, II-A-4,
M-1, M-2, B-1, B-2, B-3, and R-2 and the denominator of which is
the sum of the Uncertificated Principal Balances of REMIC 1 Regular
Interests I-A-1, I-A-2, II-A-1, II-A-2, II-A-3, II-A-4, M-1, M-2,
B-1, B-2, B-3, R-2 and ZZ.
REMIC 1 Regular
Interests : REMIC 1
Regular Interest AA, REMIC 1 Regular Interest I-A-1, REMIC 1
Regular Interest I-A-2, REMIC 1 Regular Interest II-A-1, REMIC 1
Regular Interest II-A-2, REMIC 1 Regular Interest II-A-3, REMIC 1
Regular Interest II-A-4, REMIC 1 Regular Interest M-1, REMIC 1
Regular Interest M-2, REMIC 1 Regular Interest B-1, REMIC 1 Regular
Interest B-2, REMIC 1 Regular Interest B-3, REMIC 1 Regular
Interest P, REMIC 1 Regular Interest I-SUB, REMIC 1 Regular
Interest I-GRP, REMIC 1 Regular Interest II-SUB, REMIC 1 Regular
Interest II-GRP, REMIC 1 Regular Interest XX, REMIC 1 Regular
Interest R-2 and REMIC 1 Regular Interest ZZ.
REMIC 1 Regular Interest
AA : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
I-A-1 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
I-A-2 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-A-1 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-A-2 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-A-3 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-A-4 : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
M-1 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
M-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-1 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-3 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
I-SUB : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
I-GRP : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-SUB : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
II-GRP : A regular
interest in REMIC 1 that is held as an asset of REMIC 2, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related REMIC 1
Pass-Through Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
P : A regular interest in
REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance and is not entitled to distributions of
interest.
REMIC 1 Regular Interest
R-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
ZZ : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) Uncertificated Accrued Interest calculated with the
REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest ZZ and an
Uncertificated Principal Balance equal to the excess of (x) the
Uncertificated Principal Balance of REMIC 1 Regular Interest ZZ
over (y) the REMIC 1 Overcollateralized Amount, in each case for
such Distribution Date, over (ii) the sum of Uncertificated Accrued
Interest on the REMIC 1 Regular Interests (other than REMIC 1
Regular Interests AA, ZZ, I-SUB, I-GRP, II-SUB, II-GRP and XX),
with the rate on each such REMIC 1 Regular Interest subject to a
cap equal to the Pass-Through Rate for the Corresponding Class for
the purpose of this calculation.
REMIC 1 Required
Overcollateralization Amount : 0.50% of the required Overcollateralization
Amount.
REMIC 1 Sub WAC Allocation
Percentage : 50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC 1 Regular Interest I-SUB, REMIC 1
Regular Interest I-GRP, REMIC 1 Regular Interest II-SUB, REMIC 1
Regular Interest II-GRP and REMIC 1 Regular Interest XX.
REMIC 1 Subordinated Balance
Ratio : The ratio among
the Uncertificated Principal Balances of each REMIC 1 Regular
Interest ending with the designation “SUB,”, equal to
the ratio between, with respect to each such REMIC 1 Regular
Interest, the excess of (x) the aggregate Stated Principal Balance
of the Group I Mortgage Loans or Group II Mortgage Loans, as
applicable over (y) the current Certificate Principal Balance of
related Class A Certificates.
REMIC 2 : As described in the Preliminary Statement and
Section 2.08.
REMIC Provisions
: Provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at sections 860A through 860G of Subchapter M of Chapter 1
of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property
: A Mortgaged Property acquired by a
Servicer or Master Servicer on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23 in connection with a defaulted Mortgage Loan.
Repurchase Proceeds
: The repurchase price in connection
with any repurchase of a Mortgage Loan by the Seller and any cash
deposit in connection with the substitution of a Mortgage
Loan.
Request for Release
: The Request for Release of
Documents submitted by a Servicer to the Custodian and the Trustee,
substantially in the form of Exhibit D hereto.
Required Loss
Percentage : For any
Distribution Date, the applicable percentage for such Distribution
Date set forth in the following table:
Distribution Date Occurring
In
|
Class A-1 Required Loss
Percentage
|
|
September 2008 – August
2009
|
1. 0.75%
with respect to September 2008, plus an additional 1/12th of 0.25%
for each month thereafter
|
|
September 2009 – August
2010
|
2. 1.00%
with respect to September 2009, plus an additional 1/12th of 0.25%
for each month thereafter
|
|
September 2010 – August
2011
|
3. 1.25%
with respect to September 2010, plus an additional 1/12th of 0.15%
for each month thereafter
|
|
September 2011 and
thereafter
|
4. 1.40%
|
Required Percentage
: As of any Distribution Date
following the Stepdown Date, the quotient of (1) the excess of (A)
the Stated Principal Balances of the Mortgage Loans as of such
Distribution Date, over (B) the Certificate Principal Balance of
the most senior Class of Certificates outstanding as of such
Distribution Date, prior to giving effect to distributions to be
made on such Distribution Date and (2) the Stated Principal Balance
of the Mortgage Loans as of such Distribution Date.
Reserve Interest Rate
: With respect to any Interest
Determination Date, the rate per annum that the Securities
Administrator determines to be (1) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 0.03125%) of
the one-month United States dollar lending rates which New York
City banks selected by the Securities Administrator are quoting on
the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (2) in
the event that the Securities Administrator can determine no such
arithmetic mean, the lowest one-month United States dollar lending
rate which New York City banks selected by the Securities
Administrator are quoting on such Interest Determination Date to
leading European banks.
Responsible Officer
: Any officer assigned to the
Corporate Trust Office (or any successor thereto), including any
Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any
other officer of the Trustee to whom a matter arising hereunder may
be referred.
Reuters Screen LIBO
Page : The display
designated as page “LIBO” on the Reuters Monitor Money
Rates Service (or such other page as may replace such LIBO page on
that service for the purpose of displaying London interbank offered
rates of major banks.
Rule 144A Letter
: The certificate to be furnished by
each purchaser of a Private Certificate (which is also a Physical
Certificate) which is a Qualified Institutional Buyer as defined
under Rule 144A promulgated under the Securities Act, substantially
in the form set forth as Exhibit F-3 hereto.
S&P : Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc., or any successor in
interest.
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.
Scheduled Principal
: The principal portion of any
Scheduled Payment.
Section 302
Requirements : Any rules
or regulations promulgated pursuant to the Sarbanes-Oxley Act of
2002 (as such may be amended from time to time).
Securities Act
: The Securities Act of 1933, as
amended.
Securities
Administrator : Wells
Fargo Bank, N.A., a national banking association, or its successor
in interest.
Security Instrument
: A written instrument creating a
valid first lien on a Mortgaged Property securing a Mortgage Note,
which may be any applicable form of mortgage, deed of trust, deed
to secure debt or security deed, including any riders or addenda
thereto.
Seller : Merrill Lynch Mortgage Lending, Inc., a
Delaware corporation, or its successors in interest.
Servicers : Any of GreenPoint, GMAC or Wells
Fargo.
Servicer Remittance
Date : With respect to
any Distribution Date, the 18th day of each month, commencing on
the eighteenth day of the month next following the month in which
the related Cut-off Date occurs, or if such 18 th day is
not a Business Day, the first Business Day immediately following
such 18 th day.
Servicing Advances
: All customary, reasonable and
necessary “out-of-pocket” costs and expenses incurred
by a Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) preservation,
restoration, protection and repair of a Mortgaged Property or
Cooperative Unit, as applicable, (ii) any enforcement or judicial
proceedings with respect to a Mortgage Loan, including foreclosure
actions and (iii) the management and liquidation of REO
Property.
Servicing Agreements
: Any of the GreenPoint Servicing
Agreement, the GMAC Servicing Agreement and the Wells Fargo
Servicing Agreement.
Servicing Fee
: As to any Mortgage Loan and
Distribution Date, an amount equal to the product of (i) the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the
preceding calendar month and (ii) one-twelfth of the Servicing Fee
Rate.
Servicing Fee Rate
: With respect to the 2/28 LIBOR
Loans, 3/27 LIBOR Loans, 5/25 LIBOR Loans, 7/23 LIBOR Loans and
10/20 LIBOR Loans serviced by GreenPoint, 0.250% per annum, with
respect to the One-Month LIBOR Loans, the Six-Month LIBOR Loans and
the One-Year LIBOR Loans serviced by GreenPoint, 0.375% per annum,
with respect to Mortgage Loans serviced by GMAC, 0.375% per annum,
and with respect to the Mortgage Loans serviced by Wells Fargo,
0.250% per annum.
Servicing Officer
: Any officer of the Master Servicer
involved in, or responsible for, the administration and servicing
of the Mortgage Loans whose name and specimen signature appear on a
list of servicing officers furnished to the Trustee by the Master
Servicer, as such list may be amended from time to time.
Startup Day
: August 30, 2005.
Stated Principal
Balance : With respect to
a Mortgage Loan and any Distribution Date, the amount equal to the
outstanding principal balance as of the Cut-off Date, after giving
effect to Scheduled Payments due on or before that date, reduced by
(1) the principal portion of all Scheduled Payments due on or
before the Due Date in the Due Period immediately preceding such
Distribution Date, whether or not received, and (2) all amounts
allocable to unscheduled
principal payments received on or
before the last day of the Prepayment Period immediately preceding
such Distribution Date.
Stepdown Date
: The later to occur of (1) the
Distribution Date in September 2008 or (2) the first Distribution
Date on which (A) the Class A Certificate Principal Balance
(reduced by the Principal Funds with respect to such Distribution
Date) is less than or equal to (B) 83.20% of the Stated Principal
Balances of the Mortgage Loans as of such Distribution
Date.
Subordinated
Certificates : Each Class
of the Class M Certificates and Class B Certificates.
Subsequent Recoveries
: Any amount recovered by a Servicer
or the Master Servicer (net of reimbursable expenses) with respect
to a Liquidated Mortgage Loan with respect to which a Realized Loss
was incurred after the liquidation or disposition of such Mortgage
Loan.
Substitute Mortgage
Loan : A mortgage loan
tendered to the Trustee pursuant to the related Servicing
Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, in each case, (i) which has an
Outstanding Principal Balance not greater nor materially less than
the Mortgage Loan for which it is to be substituted; (ii) which has
a Mortgage Interest Rate and Net Rate not less than, and not
materially greater than, such Mortgage Loan; (iii) which has a
maturity date not materially earlier or later than such Mortgage
Loan and not later than the latest maturity date of any Mortgage
Loan; (iv) which is of the same property type and occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater
than the Loan-to-Value Ratio of such Mortgage Loan; (vi) which is
current in payment of principal and interest as of the date of
substitution; (vii) as to which the payment terms do not vary in
any material respect from the payment terms of the Mortgage Loan
for which it is to be substituted and (viii) which has a Gross
Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate no
less than those of such Mortgage Loan, has the same Index and
interval between Interest Adjustment Dates as such Mortgage Loan,
and a Minimum Lifetime Mortgage Rate no lower than that of such
Mortgage Loan.
Tax Matters Person
: The Person designated as
“tax matters person” in the manner provided under
Treasury regulation Section 1.860F-4(d) and Treasury regulation
Section 301.6231(a)(7)-1.
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Certificate.
Transferor
: Any originator of a Mortgage
Loan.
Trigger Event
: The situation that exists with
respect to any Distribution Date on or after September 2008, if (a)
the quotient of (1) the aggregate Stated Principal Balance of all
Mortgage Loans 60 or more days delinquent, measured on a rolling
three-month basis (including Mortgage Loans in foreclosure, REO
Properties and Mortgage Loans with respect to which the applicable
mortgagor is in bankruptcy) and (2) the aggregate Stated Principal
Balance of all the Mortgage Loans as of the preceding Servicer
Remittance Date, equals or exceeds the product of (i) 31.00% and
(ii) the Required Percentage or (b) the quotient (expressed as a
percentage) of (1) the aggregate amount of Realized Losses incurred
from the Cut-off Date through the last day of the calendar month
preceding such Distribution Date and (2) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date
exceeds the Required Loss Percentage.
Trust Fund
: The corpus of the trust (the
“Merrill Lynch Mortgage Investors Trust, Series
2005-A6”) created hereunder consisting of (i) the Mortgage
Loans and all interest and principal received on or with respect
thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of
interest not required to be deposited in the Master Servicer
Collection Account; (ii) the Master Servicer Collection Account and
the Distribution Account and all amounts deposited therein pursuant
to the applicable provisions of this Agreement; (iii) property that
secured a Mortgage Loan and has been acquired by foreclosure, deed
in lieu of foreclosure or otherwise; (iv) the mortgagee’s
rights under the Insurance Policies with respect to the Mortgage
Loans (including,
without limitation the MI Policies);
(v) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid property; and (vi)
the Cap Contract and Cap Contract Account.
Trustee : Wachovia Bank, National Association, or its
successor in interest, or any successor trustee appointed as herein
provided.
Uncertificated Accrued
Interest : With respect
to any REMIC 1 Regular Interest for any Distribution Date, one
month’s interest at the related REMIC 1 Pass-Through Rate for
such Distribution Date, accrued on the Uncertificated Principal
Balance immediately prior to such Distribution Date. Uncertificated
Accrued Interest for each of the REMIC 1 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 1 Regular Interests for any
Distribution Date, any Prepayment Interest Shortfalls for any
Distribution Date shall be allocated first, to Uncertificated
Accrued Interest payable to REMIC 1 Regular Interest AA and REMIC 1
Regular Interest ZZ up to an aggregate amount equal to the REMIC 1
Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter any remaining Prepayment Interest relating to the
Mortgage Loans for any Distribution Date shall be allocated among
the REMIC 1 Regular Interests, pro rata based on, and to the extent
of, Uncertificated Accrued Interest, as calculated without
application of this sentence.
Uncertificated Notional
Amount : With respect to
the Class C Certificates and any Distribution Date, an amount equal
to the aggregate Uncertificated Principal Balance of the REMIC 1
Regular Interests for such Distribution Date.
Uncertificated Principal
Balance : The principal
amount of any REMIC 1 Regular Interest outstanding as of any date
of determination. The Uncertificated Principal Balance of each
REMIC 1 Regular Interest shall be reduced by all distributions of
principal made on such REMIC 1 Regular Interest, as applicable, on
such Distribution Date and, if and to the extent necessary and
appropriate, shall be further reduced in such Distribution Date by
Realized Losses. The Uncertificated Principal Balance of each REMIC
1 Regular Interest shall never be less than zero.
With respect to the Class C
Certificates as of any date of determination, an amount equal to
the excess, if any, of (A) the then aggregate Uncertificated
Principal Balances of the REMIC 1 Regular Interests over (B) the
then aggregate Certificate Principal Balances of the Class A
Certificates, the Class M Certificates, the Class B Certificates
and Class R-2 Interest then outstanding.
Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Applied Realized Loss
Amount over (2) the sum of (x) all distributions in reduction of
the Unpaid Realized Loss Amounts on all previous Distribution Dates
and (y) all increases in the Certificate Principal Balance of such
Certificates pursuant to the last sentence of the definition of
“Certificate Principal Balance.”
USAP Report
: A report in compliance with the
Uniform Single Attestation Program for Mortgage Bankers delivered
in accordance with Section 3.17.
Voting Rights
: The portion of the voting rights
of all the Certificates that is allocated to any of the
Certificates for purposes of the voting provisions hereunder.
Voting Rights allocated to each Class of Certificates shall be
allocated as follows: (1) 98% to the Class A, Class M and Class B
Certificates, with the allocation among such Certificates to be in
proportion to the Certificate Principal Balance of each Class
relative to the Certificate Principal Balance of all other Classes
and (2) each Class of the Class C Certificates and Class P
Certificates will be allocated all of the remaining voting rights.
Voting Rights will be allocated among the Certificates of each such
Class in accordance with their respective Percentage
Interests.
Wells Fargo
: Wells Fargo Bank, N.A., a national
banking association, or its successor in interest.
Wells Fargo Servicing
Agreement : The
Seller’s Warranties and Servicing Agreement dated as of March
1, 2005 between Merrill Lynch Mortgage Lending, Inc. and Wells
Fargo.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS;
REPRESENTATIONS AND
WARRANTIES
|
|
SECTION 2.01
|
Conveyance of Mortgage
Loans .
|
(a) The
Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Trust without
recourse all its right, title and interest in and to (i) the
Mortgage Loans identified in the Mortgage Loan Schedule, including
all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets as
shall from time to time be credited or are required by the terms of
this Agreement to be credited to the Master Servicer Collection
Account, (iii) such assets relating to the Mortgage Loans as from
time to time may be held by the Servicers in Protected Accounts,
the Master Servicer in the Master Servicer Collection Account and
the Trustee in the Distribution Account for the benefit of the
Trustee on behalf of the Regular Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid
or payable by the insurer under any Insurance Policy (to the extent
the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase
Agreement to the extent provided in Subsection 2.03(a), (vii) the
rights with respect to the Servicing Agreements as assigned to the
Depositor on behalf of the Certificateholders by the Assignment
Agreements and (viii) any proceeds of the foregoing. Although it is
the intent of the parties to this Agreement that the conveyance of
the Depositor’s right, title and interest in and to the
Mortgage Loans and other assets in the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in
the event that such conveyance is deemed to be a loan, it is the
intent of the parties to this Agreement that the Depositor shall be
deemed to have granted to the Trustee a first priority perfected
security interest in all of the Depositor’s right, title and
interest in, to and under the Mortgage Loans and other assets in
the Trust Fund, and that this Agreement shall constitute a security
agreement under applicable law.
(b) In
connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent,
the following documents or instruments (I) with respect to each
Mortgage Loan, other than a Cooperative Loan:
(i) the
original Mortgage Note, endorsed in the following form: “Pay
to the order of Wachovia Bank, National Association, as Trustee for
the registered holders of the Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 2005-A6, without
recourse,” with all prior and intervening endorsements
showing a complete chain of endorsement from the originator to the
Person so endorsing to the Trustee;
(ii) the
original recorded Mortgage or a copy of the Mortgage certified by
the public recording office in which such Mortgage has been
recorded;
(iii) an
original Assignment of the Mortgage executed in the following form:
“Wachovia Bank, National Association, as Trustee for the
registered holders of the Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2005-A6.
(iv) the
original recorded Assignment or Assignments of the Mortgage showing
a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the
immediately preceding clause (iii), if applicable and only to the
extent available to the Depositor with evidence of recording
thereon;
(v) the
originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if
any;
|
(vi)
|
the original of any guarantee
executed in connection with the Mortgage Note;
|
|
(vii)
|
the original mortgagee title
insurance policy;
|
(viii) the
original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage; and
|
(ix)
|
the original power of attorney, if
applicable;
|
and (II) with respect to each
Mortgage Loan that is a Cooperative Loan:
(i) the
original Mortgage Note, endorsed in the following form: “Pay
to the order of Wachovia Bank, National Association, as Trustee for
the registered holders of the Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 2005-A6, without
recourse,” with all prior and intervening endorsements
showing a complete chain of endorsement from the originator to the
Person so endorsing to the Trustee;
|
(ii)
|
the original duly executed
assignment of Security Agreement to the Trustee;
|
(iii) the
acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and
any required continuation statements;
(iv) the
acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the
assignee of the secured party;
(v) the
stock certificate representing the Cooperative Assets allocated to
the cooperative unit, with a stock power in blank
attached;
|
(vi)
|
the original collateral assignment
of the proprietary lease by Mortgagor to the originator;
|
|
(vii)
|
a copy of the recognition
agreement;
|
|
(viii) if
applicable and to the extent available, the original intervening
assignments, including warehousing assignments, if any, showing, to
the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3
with evidence of filing thereon; and
|
(ix)
|
the originals of each assumption,
modification or substitution agreement, if any, relating to the
Mortgage Loan;
|
provided, however, that in lieu of
the foregoing, the Depositor may deliver the following documents,
under the circumstances set forth below: (w) the Depositor may
deliver a Mortgage Note pursuant to clauses (b)(I)(i) and
(b)(II)(i) endorsed in blank, provided that the endorsement is
completed within 60 days of the Closing Date; (x) in lieu of the
original Mortgage, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered
or will, upon receipt of recording information relating to the
Mortgage required to be included thereon, be delivered to recording
offices for recording and have not been returned to the Depositor
in time to permit their delivery as specified above, the Depositor
may deliver a true copy thereof with a certification by the
Depositor on the face of such copy, substantially as follows:
“Certified to be a true and correct copy of the original,
which has been transmitted for recording” and (y) in lieu of
the Mortgage, assignment to the Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of
such documents (as evidenced by a certification from the Depositor
or the Master Servicer, to such effect) the Depositor may deliver
photocopies of such documents containing an original certification
by the judicial or other governmental authority of the jurisdiction
where such documents were recorded; and provided, further, however,
that in the case of Mortgage Loans which have been prepaid in full
after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver
to the Trustee a certification to such effect and shall deposit all
amounts paid in respect of such Mortgage Loans in the Distribution
Account on the Closing Date. The Depositor shall deliver such
original documents (including any original documents as to which
certified
copies had previously been
delivered) to the Trustee promptly after they are received. The
Depositor shall cause, at its expense, the assignment of the
Mortgage to the Trustee to be recorded not later than 180 days
after the Closing Date, unless such recordation is not required by
the Rating Agencies or an Opinion of Counsel has been provided as
set forth below in this Section 2.01. With respect to the
Cooperative Loans, the Depositor will, promptly after the Closing
Date, cause the related financing statements (if not yet filed) and
an assignment thereof from the Depositor to the Trustee to be filed
in the appropriate offices. The Depositor need not cause to be
recorded any assignment in any jurisdiction under the laws of
which, as evidenced by an Opinion of Counsel delivered by the
Depositor to the Trustee and the Rating Agencies, the recordation
of such assignment is not necessary to protect the Trustee’s
interest in the related Mortgage Loan; provided, however,
notwithstanding the delivery of any Opinion of Counsel, each
assignment shall be submitted for recording by the Depositor in the
manner described above, at no expense to the Trust Fund, the
Trustee or the Custodian, upon the earliest to occur of: (i)
reasonable direction by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Trust
Fund, (ii) the occurrence of an Event of Default, (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to
the Depositor, (iv) the occurrence of a servicing transfer as
described in Section 8.02 hereof and (v) with respect to any one
assignment, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Depositor fails to pay the
cost of recording the assignments, such expense will be paid by the
Trustee and the Trustee shall be reimbursed for such expenses by
the Trust Fund in accordance with Section 9.05.
If any original Mortgage Note
referred to in Section 2.01(b)(I)(i) or 2.01 (b)(II)(i) above
cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the
Trustee of a photocopy of such Mortgage Note, if available, with a
lost note affidavit. If any of the original Mortgage Notes for
which a lost note affidavit was delivered to the Trustee is
subsequently located, such original Mortgage Note shall be
delivered to the Trustee within three Business Days.
(c) The
parties hereto agree that it is not intended that any mortgage loan
be included in the Trust that is either (i) a “High-Cost Home
Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003, (ii) a “High-Cost Home
Loan” as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a “High Cost Home Mortgage
Loan” as defined in the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004 or (iv) a “High-Cost
Home Loan” as defined by the Indiana High Cost Home Loan Law
effective January 1, 2005.
|
|
SECTION 2.02
|
Acceptance of Mortgage Loans by
Trustee .
|
(a) The
Trustee acknowledges the sale, transfer and assignment of the Trust
to it by the Depositor and its receipt thereof, subject to further
review and the exceptions which may be noted pursuant to the
procedures described below, and declares that it, or the Custodian
on its behalf, holds the documents (or certified copies thereof)
delivered to it pursuant to Section 2.01, and declares that it will
continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund
delivered to it as Trustee in trust for the use and benefit of all
present and future Holders of the Certificates and the NIMs
Insurer, if any. On or before the Closing Date (or, with respect to
any Substitute Mortgage Loan, within five Business Days after the
receipt by the Trustee or Custodian thereof), the Trustee agrees,
for the benefit of the Certificateholders and the NIMs Insurer, if
any, to review or cause to be reviewed by the Custodian on its
behalf (under the Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver, or cause to be executed
and delivered, to the Depositor and the NIMs Insurer, if any, on
the Closing Date an Initial Certification. In conducting such
review, the Trustee or Custodian will certify as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in
the exception report annexed thereto as not being covered by such
certification), (i) all documents constituting part of such
Mortgage File (other than such documents described in Section
2.01(b)(I)(iii)) required to be delivered to it pursuant to this
Agreement are in its possession, provided that with respect to the
documents described in Section 2.01(b)(I)(v), (vi), (viii) and (ix)
and 2.01(b)(II)(viii) and (ix) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents
exist, (ii) such documents have been reviewed by it and are not
torn, mutilated, defaced or otherwise altered (except if initialed
by the obligor) and appear to relate on their face to such Mortgage
Loan, (iii) based on its
examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the
Mortgagor’s name, including the street address but excluding
the zip code, the Mortgage Interest Rate and the original principal
balance of the Mortgage Loan accurately reflects information set
forth in the Mortgage File, (iv) with respect to Mortgage Loans
with a Mortgage Interest Rate subject to adjustment, the Gross
Margin and the lifetime cap and the periodic cap for such Mortgage
Loan and (v) the Cap Contract (a form of which is attached hereto
as Exhibit L). In performing any such review, the Trustee, or the
Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported
genuineness of any signature thereon. Notwithstanding anything to
the contrary in this Agreement, it is herein acknowledged that, in
conducting such review, the Trustee or the Custodian on its behalf
is under no duty or obligation to inspect, review or examine any
such documents, instruments, certificates or other papers to
determine whether they are genuine, enforceable, or appropriate for
the represented purpose or whether they have actually been recorded
or that they are other than what they purport to be on their face,
or to determine whether any Person executing any documents is
authorized to do so or whether any signature is genuine. If the
Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or
received, or to be unrelated to the Mortgage Loans identified in
Exhibit B or to appear to be defective on its face, the Trustee or
the Custodian, as its agent, shall promptly notify the Seller and
the NIMs Insurer, if any. In accordance with the Mortgage Loan
Purchase Agreement, the Seller shall correct or cure any such
defect within ninety (90) days from the date of notice from the
Trustee or the Custodian, as its agent, of the defect and if the
Seller fails to correct or cure the defect within such period, and
such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee, shall
enforce the Seller’s obligation pursuant to the Mortgage Loan
Purchase Agreement, within 90 days from the Trustee’s or the
Custodian’s notification, to purchase such Mortgage Loan at
the Purchase Price; provided that, if such defect would cause the
Mortgage Loan to be other than a “qualified mortgage”
as defined in Section 860G(a)(3) of the Code, any such cure or
repurchase must occur within 90 days from the date such breach was
discovered; provided, however, that if such defect relates solely
to the inability of the Seller to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy
because the originals of such documents, or a certified copy have
not been returned by the applicable jurisdiction, the Seller shall
not be required to purchase such Mortgage Loan if the Seller
delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording
office in the applicable jurisdiction because such document has not
been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if
such receipt is not available, a certificate confirming that such
documents have been accepted for recording, and delivery to the
Trustee or the Custodian, as its agent, shall be effected by the
Seller within thirty days of its receipt of the original recorded
document.
(b) No
later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the
Certificateholders and the NIMs Insurer, if any, the Mortgage Files
delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor a Final Certification. In
conducting such review, the Trustee or the Custodian, as its agent,
will certify as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage
Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), that (i) all
documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(v) and (ix)) required to
be delivered to it pursuant to this Agreement are in its
possession, provided that with respect to the documents described
in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents
exist, (ii) such documents have been reviewed by it and are not
torn, mutilated, defaced or otherwise altered (except if initialed
by the obligor) and appear regular on their face and relate to such
Mortgage Loan, (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the
Mortgagor’s name, including the street address but excluding
the zip code, the Mortgage Interest Rate and the original principal
balance of the Mortgage Loan accurately reflects information set
forth in the Mortgage File. In performing any such review, the
Trustee, or the Custodian, as its agent, may conclusively rely on
the purported due execution and genuineness of any such document
and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is
herein acknowledged that, in conducting such review, the Trustee or
the Custodian on its behalf is under no duty or obligation (i) to
inspect, review or examine any such
documents, instruments, certificates
or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have
actually been recorded or that they are other than what they
purport to be on their face, or to determine whether any Person
executing any documents is authorized to do so or whether any
signature is genuine. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File
not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective
on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Seller and the NIMs Insurer, if any. In
accordance with the Mortgage Loan Purchase Agreement, the Seller
shall correct or cure any such defect within 90 days from the date
of notice from the Trustee of the defect and if the Seller is
unable to cure such defect within such period, and if such defect
materially and adversely affects the interests of the
Certificateholders or the NIMs Insurer, if any, in the related
Mortgage Loan, the Trustee shall enforce the Seller’s
obligation under the Mortgage Loan Purchase Agreement to purchase
such Mortgage Loan at the Purchase Price, provided, however, that
if such defect relates solely to the inability of the Seller to
deliver the original Security Instrument or intervening assignments
thereof, or a certified copy, because the originals of such
documents or a certified copy, have not been returned by the
applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event
later than 360 days after the Closing Date.
(c) In
the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall
remit to the Master Servicer the Purchase Price for deposit in the
Master Servicer Collection Account and the Seller shall provide to
the Trustee written notification detailing the components of the
Purchase Price. Upon deposit of the Purchase Price in the Master
Servicer Collection Account, the Depositor shall notify the Trustee
and the Custodian and the Trustee or the Custodian, as its agent
(upon receipt of a Request for Release in the form of Exhibit D
attached hereto with respect to such Mortgage Loan), shall release
to the Seller the related Mortgage File and the Trustee shall
execute and deliver all instruments of transfer or assignment,
without recourse, furnished to it by the Seller as are necessary to
vest in the Seller title to and rights under the Mortgage Loan.
Such purchase shall be deemed to have occurred on the date on which
the Purchase Price in available funds is received by the Trustee.
The Trustee shall amend the Mortgage Loan Schedule, which was
previously delivered to it by Depositor in a form agreed to between
the Depositor and the Trustee, to reflect such repurchase and shall
promptly notify the Rating Agencies and the Master Servicer of such
amendment. The obligation of the Seller to repurchase any Mortgage
Loan as to which such a defect in a constituent document exists
shall be the sole remedy respecting such defect available to the
Certificateholders or to the Trustee on their behalf.
|
|
SECTION 2.03
|
Assignment of Interest in the
Mortgage Loan Purchase Agreement .
|
(a) The
Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders and the NIMs Insurer, all of its right, title
and interest in the Mortgage Loan Purchase Agreement, including but
not limited to Depositor’s rights and obligations pursuant to
the Servicing Agreements (noting that the Seller has retained the
right in the event of breach of the representations, warranties and
covenants, if any, with respect to the related Mortgage Loans of
the related Servicer under the related Servicing Agreement to
enforce the provisions thereof and to seek all or any available
remedies). The obligations of the Seller to substitute or
repurchase, as applicable, a Mortgage Loan shall be the
Trustee’s and the Certificateholders’ sole remedy for
any breach thereof. At the request of the Trustee, the Depositor
shall take such actions as may be necessary to enforce the above
right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the
Trustee may reasonably require in order to enable the Trustee to
carry out such enforcement. With respect to the representations and
warranties described in the Mortgage Loan Purchase Agreement which
are made to the best of the Seller’s knowledge, if it is
discovered by any of the Depositor, the Seller or the Trustee that
the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, then notwithstanding the Seller’s lack
of knowledge with respect to the substance of such representation
and warranty, such inaccuracy shall be deemed a breach of the
applicable representation and warranty.
(b) If
the Depositor, the Master Servicer, Securities Administrator, the
NIMs Insurer or the Trustee discovers a breach of any of the
representations and warranties set forth in the Mortgage Loan
Purchase Agreement, which breach
materially and adversely affects the
value of the interests of Certificateholders, the NIMs Insurer or
the Trustee in the related Mortgage Loan, the party discovering the
breach shall give prompt written notice of the breach to the other
parties. The Seller, within 90 days of its discovery or receipt of
notice that such breach has occurred (whichever occurs earlier),
shall cure the breach in all material respects or, subject to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement,
as applicable, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Trustee; provided, however,
that if there is a breach of any representation set forth in the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement,
as applicable, and the Mortgage Loan or the related property
acquired with respect thereto has been sold, then the Seller shall
pay, in lieu of the Purchase Price, any excess of the Purchase
Price over the Net Liquidation Proceeds received upon such sale.
(If the Net Liquidation Proceeds exceed the Purchase Price, any
excess shall be paid to the Seller to the extent not required by
law to be paid to the borrower.) Any such purchase by the Seller
shall be made by providing an amount equal to the Purchase Price to
the Master Servicer for deposit in the Master Servicer Collection
Account and written notification detailing the components of such
Purchase Price. The Depositor shall notify the Trustee and submit
to the Trustee or the Custodian, as its agent, a Request for
Release, and the Trustee shall release, or the Trustee shall cause
the Custodian to release, to the Seller the related Mortgage File
and the Trustee shall execute and deliver all instruments of
transfer or assignment furnished to it by the Seller, without
recourse, as are necessary to vest in the Seller title to and
rights under the Mortgage Loan or any property acquired with
respect thereto. Such purchase shall be deemed to have occurred on
the date on which the Purchase Price in available funds is received
by the Trustee. The Trustee or the Master Servicer shall amend the
Mortgage Loan Schedule to reflect such repurchase and shall
promptly notify the Master Servicer and the Rating Agencies of such
amendment. Enforcement of the obligation of the Seller to purchase
(or substitute a Substitute Mortgage Loan for) any Mortgage Loan or
any property acquired with respect thereto (or pay the Purchase
Price as set forth in the above proviso) as to which a breach has
occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders, the
NIMs Insurer or the Trustee on their behalf.
SECTION
2.04 Substitution of
Mortgage Loans . Notwithstanding anything to the contrary in
this Agreement, in lieu of purchasing a Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller may, no later than the date by which
such purchase by the Seller would otherwise be required, tender to
the Trustee a Substitute Mortgage Loan accompanied by a certificate
of an authorized officer of the Seller that such Substitute
Mortgage Loan conforms to the requirements set forth in the
definition of “Substitute Mortgage Loan” in the
Mortgage Loan Purchase Agreement or this Agreement, as applicable;
provided, however, that substitution pursuant to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall not be permitted after the
termination of the two-year period beginning on the Startup Day;
provided, further, that if the breach would cause the Mortgage Loan
to be other than a “qualified mortgage” as defined in
Section 860G(a)(3) of the Code, any such cure or substitution must
occur within 90 days from the date the breach was discovered. The
Trustee or the Custodian, as its agent, shall examine the Mortgage
File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent,
shall notify the Seller, in writing, within five Business Days
after receipt, whether or not the documents relating to the
Substitute Mortgage Loan satisfy the requirements of the fourth
sentence of Subsection 2.02(a). Within two Business Days after such
notification, the Seller shall provide to the Trustee for deposit
in the Distribution Account the amount, if any, by which the
Outstanding Principal Balance as of the next preceding Due Date of
the Mortgage Loan for which substitution is being made, after
giving effect to Scheduled Principal due on such date, exceeds the
Outstanding Principal Balance as of such date of the Substitute
Mortgage Loan, after giving effect to Scheduled Principal due on
such date, which amount shall be treated for the purposes of this
Agreement as if it were the payment by the Seller of the Purchase
Price for the purchase of a Mortgage Loan by the Seller . After
such notification to the Seller and, if any such excess exists,
upon receipt of such deposit, the Trustee shall accept such
Substitute Mortgage Loan which shall thereafter be deemed to be a
Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in
which the substitution occurs and any Principal Prepayments made
thereon during such month shall be the property of the Trust Fund
and accrued interest for such month on the Mortgage Loan for which
the substitution is made and any Principal Prepayments made thereon
during such month shall be the property of the Seller. The
Scheduled Principal on a Substitute Mortgage Loan due on the Due
Date in the month of substitution shall be the property of the
Seller and the Scheduled Principal on the Mortgage Loan for which
the substitution is made due on such Due Date shall be the property
of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan (and
delivery to the Trustee or Custodian of a Request for Release for
such Mortgage Loan), the Trustee shall release to the Seller the
related Mortgage File related to any Mortgage Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, and shall execute and deliver all
instruments of transfer or assignment, without recourse, in form as
provided to it as are necessary to vest in the Seller title to and
rights under any Mortgage Loan released pursuant to the Mortgage
Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver the documents related to the
Substitute Mortgage Loan in accordance with the provisions of the
Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b)
of this Agreement, as applicable, with the date of acceptance of
the Substitute Mortgage Loan deemed to be the Closing Date for
purposes of the time periods set forth in those Subsections. The
representations and warranties set forth in the Mortgage Loan
Purchase Agreement shall be deemed to have been made by the Seller
with respect to each Substitute Mortgage Loan as of the date of
acceptance of such Mortgage Loan by the Trustee. The Master
Servicer shall amend the Mortgage Loan Schedule to reflect such
substitution and shall provide a copy of such amended Mortgage Loan
Schedule to the Trustee, the NIMs Insurer, if any, and the Rating
Agencies.
Notwithstanding any other provision
of this Agreement, the right to substitute Mortgage Loans pursuant
to this Article II shall be subject to the additional limitations
that no substitution of a Mortgage Loan shall be made unless the
Master Servicer, the Trustee and the NIMs Insurer shall have
received an Opinion of Counsel (at the expense of the party seeking
to make the substitution) that, under current law, such
substitution will not (A) affect adversely the status of any REMIC
established hereunder as a REMIC, or of the related “regular
interests” as “regular interests” in any such
REMIC, or (B) cause any such REMIC to engage in a “prohibited
transaction” or prohibited contribution pursuant to the REMIC
provisions.
|
|
SECTION 2.05
|
Issuance of
Certificates .
|
(a) The
Trustee acknowledges the assignment to it on behalf of the Trust
Fund of the Mortgage Loans and the other assets comprising the
Trust Fund and, concurrently therewith, has signed, and
countersigned and delivered to the Depositor, in exchange therefor,
Certificates in such authorized denominations representing such
Percentage Interests as the Depositor has requested. The Trustee
agrees that it will hold the Mortgage Loans and such other assets
as may from time to time be delivered to it segregated on the books
of the Trustee in trust for the benefit of the
Certificateholders.
SECTION
2.06 Representations
and Warranties Concerning the Depositor . The Depositor hereby
represents and warrants to the Trustee, the NIMs Insurer, if any,
the Master Servicer and the Securities Administrator as
follows:
(i) the
Depositor (a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the
Depositor’s business as presently conducted or on the
Depositor’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the
Depositor has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the
execution and delivery by the Depositor of this Agreement have been
duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or
its properties or the articles of incorporation or by-laws of the
Depositor, except those conflicts, breaches or defaults which would
not reasonably be expected to have a material adverse effect on the
Depositor’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the
execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action
in respect of, any state, federal or other governmental authority
or agency, except those consents, approvals, notices, registrations
or other actions as have already been obtained, given or
made;
(v) this
Agreement has been duly executed and delivered by the Depositor
and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of
the Depositor enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) there
are no actions, suits or proceedings pending or, to the knowledge
of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this
Agreement or (ii) with respect to any other matter which in the
judgment of the Depositor will be determined adversely to the
Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor’s ability to
enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any
order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement; and
(vii) immediately
prior to the transfer and assignment to the Trustee, each Mortgage
Note and each Mortgage were not subject to an assignment or pledge,
and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage
Loan to the Trustee free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest.
SECTION
2.07 Representations
and Warranties Concerning the Master Servicer . Wells Fargo
Bank, National Association, in its capacity as Master Servicer and
Securities Administrator hereby represents and warrants to the
Seller, the Depositor and the Trustee as follows, as of the Closing
Date:
(i) It
is a national banking association duly formed, validly existing and
in good standing under the laws of the United States of America and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Master
Servicer and the Securities Administrator in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such state, to
the extent necessary to ensure its ability to enforce each Mortgage
Loan, to master service the Mortgage Loans in accordance with the
terms of this Agreement and to perform any of its other obligations
under this Agreement in accordance with the terms
hereof;
(ii) It
has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all
necessary corporate action on its part the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except that
(a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivers
