EXECUTION COPY
GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
PROVIDENT ASSET MANAGEMENT, L.P.
Seller
PROVIDENT FUNDING ASSOCIATES, L.P.,
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee and Custodian
and
WELLS FARGO BANK, N.A.,
Master Servicer and Securities Administrator
POOLING AND SERVICING
AGREEMENT
Dated as of October 1, 2005
__________________________________
Provident Funding Mortgage Loan Trust
2005-2
Mortgage Pass-Through Certificates,
Series 2005-2
Table of
Contents
Page
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
Section 1.01.
Defined Terms
5
Section 1.02.
Accounting
41
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01.
Conveyance of Mortgage Loans
41
Section 2.02.
Acceptance by Trustee
44
Section 2.03.
Repurchase or Substitution of Mortgage
Loans by the Sellers
45
Section 2.04.
Representations and Warranties of the
Sellers with Respect to the
Mortgage Loans
48
Section 2.05.
Representations, Warranties and Covenants
of the Servicer
49
Section 2.06.
Representations and Warranties of the
Depositor
51
Section 2.07.
Issuance of Certificates
52
Section 2.08.
Representations and Warranties of the
Sellers
53
Section 2.09.
Covenants of the Sellers
54
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01.
Servicer to Administer and Service the
Mortgage Loans
55
Section 3.02.
Sub-Servicing Agreements Between Servicer
and Sub-Servicers.
57
Section 3.03.
Successor Sub-Servicers.
58
Section 3.04.
Liability of the Servicer.
58
Section 3.05.
No Contractual Relationship Between
Sub-Servicers, Trustee and the
Master Servicer or
Certificateholders.
58
Section 3.06.
Assumption or Termination of
Sub-Servicing Agreements by Master
Servicer.
59
Section 3.07.
Collection of Certain Mortgage Loan
Payments.
59
Section 3.08.
Sub-Servicing Accounts.
60
Section 3.09.
Collection of Taxes, Assessments and
Similar Items; Servicing
Accounts.
60
Section 3.10.
Collection Account and Distribution
Account
61
Section 3.11.
Withdrawals from the Collection Account
and Distribution
Account
63
Section 3.12.
Investment of Funds in the Collection
Account
65
Section 3.14.
Maintenance of Hazard Insurance Polices
and Errors and Omissions
and Fidelity Coverage
66
Section 3.15.
Enforcement of Due-on-Sale Clauses;
Assumption Agreements
68
Section 3.16.
Realization upon Defaulted Mortgage
Loans
69
Section 3.17.
Trustee to Cooperate; Release of Mortgage
Files
71
Section 3.18.
Servicing Compensation
72
Section 3.19.
Reports to the Master Servicer;
Collection Account Statements
73
Section 3.20.
Statement as to Compliance
73
Section 3.21.
Independent Public Accountants’
Servicing Report
73
Section 3.22.
Access to Certain Documentation; Filing
of Reports by Servicer
74
Section 3.23.
Title, Management and Disposition of REO
Property
74
Section 3.24.
Obligations of the Servicer in Respect of
Interest Shortfalls
77
Section 3.25
[Reserved]
77
Section 3.26.
Obligations of the Servicer in Respect of
Adjustments
77
Section 3.27.
Solicitations
78
Section 3.28.
Reports Filed with Securities and
Exchange Commission
78
Section 3.30.
Liabilities of the Master
Servicer
79
Section 3.31.
Documents, Records and Funds in
Possession of the Servicer to be
Held for Trust
79
ARTICLE IIIA
ADMINISTRATION AND MASTER SERVICING OF THE
MORTGAGE LOANS BY THE MASTER SERVICER
SECTION 3A.01.
Master Servicer
80
SECTION 3A.02.
REMIC-Related Covenants
81
SECTION 3A.03.
Monitoring of Servicer
81
SECTION 3A.04.
Fidelity Bond
82
SECTION 3A.05.
Power to Act; Procedures
82
SECTION 3A.06.
Due-on-Sale Clauses; Assumption
Agreements
83
SECTION 3A.07.
Documents, Records and Funds in
Possession of Master Servicer To
Be Held for Trustee
83
SECTION 3A.08.
Trustee to Retain Possession of Certain
Insurance Policies and
Documents
83
SECTION 3A.09.
Compensation for the Master
Servicer
84
SECTION 3A.10.
Annual Officer’s Certificate as to
Compliance
84
SECTION 3A.11.
Annual Independent Accountant’s
Master Servicing Report
85
SECTION 3A.12.
Obligation of the Master Servicer in
Respect of Interest Shortfalls
85
SECTION 3A.13.
Closing Certificate and
Opinion
85
SECTION 3A.14.
No Solicitations
86
ARTICLE IV
[RESERVED]
ARTICLE V
FLOW OF FUNDS
Section 5.01.
Distributions
86
Section 5.02.
[Reserved]
91
Section 5.03.
Allocation of Realized Losses
91
Section 5.04.
Statements
93
Section 5.05.
Remittance Reports; Advances
96
Section 5.06.
Compensating Interest Payments
96
Section 5.08
Recoveries
97
ARTICLE VI
THE CERTIFICATES
Section 6.01.
The Certificates
98
Section 6.02.
Registration of Transfer and Exchange of
Certificates
99
Section 6.03.
Mutilated, Destroyed, Lost or Stolen
Certificates
104
Section 6.04.
Persons Deemed Owners
105
Section 6.05.
Appointment of Paying Agent
105
ARTICLE VII
DEFAULT
Section 7.01.
Events of Default
105
Section 7.02.
Master Servicer or Trustee to
Act
108
Section 7.03.
Waiver of Event of Default
109
Section 7.04.
Notification to
Certificateholders
109
ARTICLE VIII
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 8.01.
Duties of the Trustee and the Securities
Administrator
110
Section 8.02.
Certain Matters Affecting the Trustee and
the Securities
Administrator
111
Section 8.03.
Trustee and the Securities Administrator
Not Liable for Certificates
or Mortgage Loans
113
Section 8.04.
Trustee, Custodian and Servicer May Own
Certificates
114
Section 8.05.
Trustee’s and Securities
Administrator’s Fees and Expenses;
Indemnification of Trustee
114
Section 8.06.
Eligibility Requirements for
Trustee
114
Section 8.07.
Resignation or Removal of
Trustee
115
Section 8.08.
Successor Trustee
115
Section 8.09.
Merger or Consolidation of
Trustee
116
Section 8.10.
Appointment of Co-Trustee or Separate
Trustee
116
Section 8.11.
Limitation of Liability
117
Section 8.12.
Trustee May Enforce Claims Without
Possession of Certificates
117
Section 8.13.
Suits for Enforcement
118
Section 8.14.
Waiver of Bond Requirement
118
Section 8.15.
Waiver of Inventory, Accounting and
Appraisal Requirement
118
Section 8.16.
Appointment of Custodians
119
Section 8.17.
No Solicitations
119
Section 8.18.
Trustee to Retain Possession of Certain
Insurance Policies and
Documents
120
ARTICLE IX
REMIC ADMINISTRATION
Section 9.01.
REMIC Administration
120
Section 9.02.
Prohibited Transactions and
Activities
122
ARTICLE X
THE SELLERS, THE SERVICER, THE MASTER SERVICER , THE SECURITIES
ADMINISTRATOR AND THE DEPOSITOR
Section 10.01.
Liability of the Sellers, the Servicer,
the Master Servicer, the
Securities Administrator and the
Depositor
122
Section 10.02.
Merger or Consolidation of, or Assumption
of the Obligations of, the
Seller, the Servicer, the Master
Servicer, the Securities Administrator
or the Depositor
123
Section 10.03.
Limitation on Liability of the Servicer,
the Master Servicer, the
Securities Administrator and
Others
123
Section 10.04.
Servicer Not to Resign
124
Section 10.05.
Delegation of Duties
124
Section 10.06.
Master Servicer Not to Resign
124
Section 10.07.
Successor Master Servicer
125
Section 10.08.
Sale and Assignment of Master
Servicing
125
Section 10.09.
Additional Compensation to the Master
Servicer
126
ARTICLE XI
TERMINATION
Section 11.01.
Termination
126
Section 11.02.
Additional Termination
Requirements
127
Section 11.03.
[Reserved]
128
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01.
Amendment
128
Section 12.02.
Recordation of Agreement;
Counterparts
129
Section 12.03.
Limitation on Rights of
Certificateholders
130
Section 12.04.
Governing Law
130
Section 12.05.
Notices
130
Section 12.06.
Severability of Provisions
131
Section 12.07.
Article and Section References
131
Section 12.08.
Notices to the Rating Agencies
132
Section 12.09.
Further Assurances
133
Section 12.10.
Benefits of Agreement
133
Section 12.11.
Acts of Certificateholders
133
Section 12.12.
Successors and Assigns
133
Section 12.13.
[Reserved]
134
Section 12.14.
Provision of Information
134
EXHIBITS AND SCHEDULES:
Exhibit A
Form of Class A Certificate
A-1
Exhibit B
Form of Class A-R Certificate
B-1
Exhibit C
Form of Subordinate
Certificate
C-1
Exhibit D
[Reserved]
D-1
Exhibit E
Form of Reverse of the
Certificates
E-1
Exhibit F
Request for Release
F-1
Exhibit G-1
Form of Receipt of Mortgage
Note
G-1-1
Exhibit G-2
Form of Interim Certification of
Trustee
G-2-1
Exhibit G-3
Form of Final Certification of
Trustee
G-3-1
Exhibit H
Form of Lost Note Affidavit
H-1
Exhibit I-1
Form of ERISA Representation Class
A-R
I-1-1
Exhibit I-2
Form of ERISA Representation [Class
3-A][Class 4-A][Class B-1]
[Class B-2][Class B-3][Class B-4][Class
B-5][Class B-6]
I-2-1
Exhibit J-1
Form of Investment Letter [Non-Rule
144A]
J-1-1
Exhibit J-2
Form of Rule 144A Investment
Letter
J-2-1
Exhibit K
Form of Transferor Certificate
K-1
Exhibit L
Transfer Affidavit for Class A-R
Certificate Pursuant to
Section 6.02
L-1
Exhibit M
[Reserved]
M-1
Exhibit N
[Reserved]
N-1
Exhibit O
Form of 10-K Certification
O-1
Exhibit P
Form of Trustee Certification
P-1
Schedule I
Mortgage Loan Schedule
Schedule II
Representations and Warranties –
Mortgage Loans
This Pooling and Servicing Agreement is
dated as of October 1, 2005 (the “ Agreement ”),
among GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation,
as depositor (the “ Depositor ”), PROVIDENT
ASSET MANAGEMENT, L.P., a California limited partnership, as a
seller (a “ Seller ”), PROVIDENT FUNDING
ASSOCIATES, L.P., a California limited partnership, as a seller (in
such capacity, a “ Seller ” and together with
Provident Asset Management, L.P., the “ Sellers
”) and as servicer (in such capacity, the “
Servicer ”), 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 ”) and DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking association, as trustee (in such
capacity, the “ Trustee ”) and custodian (in
such capacity, the “ Custodian ”).
PRELIMINARY STATEMENT:
Through this Agreement, the Depositor
intends to cause the issuance and sale of the Provident Funding
Mortgage Loan Trust 2005-2, Mortgage Pass-Through Certificates,
Series 2005-2 (the “ Certificates ”)
representing in the aggregate the entire beneficial ownership of
the Trust, the primary assets of which are the Mortgage Loans (as
defined below).
The Depositor intends to sell the
Certificates to be issued hereunder in multiple classes, which in
the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The
Certificates will consist of thirteen classes of certificates,
designated as (i) the Class 1-A-1A Certificates, (ii) the Class
1-A-1B Certificates, (iii) the Class 2-A-1A Certificates, (iv) the
Class 2-A-1B Certificates, (v) the Class 3-A Certificates, (vi) the
Class 4-A Certificates, (vii) the Class A-R Certificate, (viii) the
Class B-1 Certificates, (ix) the Class B-2 Certificates, (x) the
Class B-3 Certificates, (xi) the Class B-4 Certificates, (xii) the
Class B-5 Certificates and (xiii) the Class B-6
Certificates.
As provided herein, the Securities
Administrator shall elect that the Trust Fund be treated for
federal income tax purposes as comprising two real estate mortgage
investment conduits (each a “ REMIC ” or, in the
alternative, the “ Lower Tier REMIC ” and the
“ Upper Tier REMIC ”). Each Certificate,
other than the Class A-R Certificate represents ownership of a
regular interest in the Upper Tier REMIC for purposes of the REMIC
Provisions. The Class A-R Certificate represents ownership of
the sole class of residual interest in each of the Lower Tier REMIC
and the Upper Tier REMIC for purposes of the REMIC
Provisions.
The Upper Tier REMIC shall hold as its
assets the several classes of uncertificated Lower Tier Interests
in the Lower Tier REMIC, other than the Class LT-A-R Interest, and
each such Lower Tier Interest is hereby designated as a regular
interest in the Lower Tier REMIC for purposes of the REMIC
Provisions. The Lower Tier REMIC shall hold as its assets the
property of the Trust Fund.
For purposes of the REMIC Provisions, the
startup day is the Closing Date. All REMIC regular and
residual interests created hereby will be retired on or before the
Latest Possible Maturity Date.
The Lower Tier REMIC
The following table sets forth (or
describes) the Class designation, Pass-Through Rate and original
class principal balance for each Class of interests in the Lower
Tier REMIC (each of which, except for the LT-A-R Interest, is
hereby designated a REMIC regular interest for purposes of the
REMIC Provisions), each such Class a “Lower Tier
Interest” comprising the interests in the Trust Fund created
hereunder:
|
Lower Tier REMIC Class Designation
|
Original Class
Principal
Balance
|
Pass-Through
Rate
|
Related Loan Group
|
|
LT-Group 1
|
(6)
|
(1)
|
Group 1
|
|
LT-SC1
|
(5)
|
(1)
|
Group 1
|
|
LT-Group 2
|
(6)
|
(2)
|
Group 2
|
|
LT-SC2
|
(5)
|
(2)
|
Group 2
|
|
LT-Group 3
|
(6)
|
(3)
|
Group 3
|
|
LT-SC3
|
(5)
|
(3)
|
Group 3
|
|
LT-Group 4
|
(6)
|
(4)
|
Group 4
|
|
LT-SC4
|
(5)
|
(4)
|
Group 4
|
|
LT-A-R
|
(7)
|
(7)
|
N/A
|
(1)
The Pass-Through Rate for
these Lower Tier Interests for any Distribution Date (and the
related Accrual Period) is a per annum rate equal to the Net WAC
for Loan Group 1.
(2)
The Pass-Through Rate for
these Lower Tier Interests for any Distribution Date (and the
related Accrual Period) is a per annum rate equal to the Net WAC
for Loan Group 2.
(3)
The Pass-Through Rate for
these Lower Tier Interests for any Distribution Date (and the
related Accrual Period) is a per annum rate equal to the Net WAC
for Loan Group 3.
(4)
The Pass-Through Rate for
these Lower Tier Interests for any Distribution Date (and the
related Accrual Period) is a per annum rate equal to the Net WAC
for Loan Group 4.
(5)
This Lower Tier Interest
shall have an Original Class Principal Balance equal to 1% of the
Subordinate Component for its Related Loan Group.
(6)
This Lower Tier Interest
shall have an Original Class Principal Balance equal to the excess
of (i) the Loan Group Balance of its Related Loan Group over (ii)
the Original Class Principal Balance of the Lower Tier Interest
having the designation “SC” which is related to the
same Loan Group as this Lower Tier Interest.
(7)
The Class LT-R Interest
does not have a principal balance and does not bear interest.
On each Distribution Date, to the extent
of Available Funds for each Loan Group distributable as interest,
the Securities Administrator shall be deemed to distribute interest
with respect to the Lower Tier REMIC Interests based on the
interest rates described above.
On each Distribution Date, the remaining
Available Funds for each Loan Group shall be distributed as
principal on Lower Tier REMIC Interests as follows:
(i)
First, to the Class LT-SC1 Interest until
the principal balance of such Lower Tier Interest equals one
percent of the Subordinate Component for Loan Group 1 for the next
succeeding Distribution Date;
(ii)
Second, to the Class LT-SC2 Interest
until the principal balance of such Lower-Tier Interest equals one
percent of the Subordinate Component for Loan Group 2 for the next
succeeding Distribution Date;
(iii)
Third, to the Class LT-SC3 Interest until
the principal balance of such Lower-Tier Interest equals one
percent of the Subordinate Component for Loan Group 3 for the next
succeeding Distribution Date;
(iv)
Fourth, to the Class LT-SC4 Interest
until the principal balance of such Lower-Tier Interest equals one
percent of the Subordinate Component for Loan Group 4 for the next
succeeding Distribution Date;
(v)
Fifth, to the Class LT-SC1, Class LT-SC2,
Class LT-SC3 or the Class LT-SC4 Interests the minimum amount
necessary to cause the ratio of the principal balance of such
Lower-Tier Interest to the other three Lower-Tier Interests to
equal the ratio of the Subordinate Component related to such
Lower-Tier Interest to the Subordinate Components related to the
other three Lower-Tier Interests.
(vi)
Sixth, to the Class LT-Group 1, Class
LT-Group 2, Class LT-Group 3 and the Class LT-Group 4 Interests as
follows:
a.
To the Class LT-Group 1 Interest until
its principal balance equals the difference between (I) the Loan
Group Balance of Loan Group 1 on such Distribution Date,
minus (II) the principal balance of the Class LT-SC1
Interest on such Distribution Date, taking into account the
distributions under priorities (i) through (v) above;
b.
To the Class LT-Group 2 Interest until
its principal balance equals the difference between (I) the Loan
Group Balance of Loan Group 2 on such Distribution Date,
minus (II) the principal balance of the Class LT-SC2
Interest on such Distribution Date, taking into account the
distributions under priorities (i) through (v) above;
c.
To the Class LT-Group 3 Interest until
its principal balance equals the difference between (I) the Loan
Group Balance of Loan Group 3 on such Distribution Date,
minus (II) the principal balance of the Class LT-SC3
Interest on such Distribution Date, taking into account the
distributions under priorities (i) through (v) above;
and
d.
To the Class LT-Group 4 Interest until
its principal balance equals the difference between (I) the Loan
Group Balance of Loan Group 4 on such Distribution Date,
minus (II) the principal balance of the Class LT-SC4
Interest on such Distribution Date, taking into account the
distributions under priorities (i) through (v) above.
On each Distribution Date, Realized
Losses with respect to any Loan Group shall each be allocated among
the Lower Tier Interests in the same manner that principal is
distributed among such Lower Tier Interests.
The Certificates
The following table sets forth (or
describes) the Class designation, Pass-Through Rate and Original
Class Certificate Principal Balance for each Class of Certificates
(each of which, except for the Class A-R Certificate, is hereby
designated a REMIC regular interest for purposes of the REMIC
Provisions) comprising the interests in the Upper Tier REMIC
created hereunder:
|
Class
|
Original Class
Certificate Principal
Balance
|
Pass-Through
Rate
|
|
Class 1-A-1A
|
$106,000,000.00
|
(1)
|
|
Class 1-A-1B
|
$7,486,000.00
|
(1)
|
|
Class 2-A-1A
|
$291,580,000.00
|
(2)
|
|
Class 2-A-1B
|
$10,263,000.00
|
(2)
|
|
Class 3-A
|
$150,588,000.00
|
(3)
|
|
Class 4-A
|
$24,742,000.00
|
(4)
|
|
Class A-R
|
$100.00
|
(1)
|
|
Class B-1
|
$10,396,000.00
|
(5)
|
|
Class B-2
|
$4,280,000.00
|
(5)
|
|
Class B-3
|
$1,834,000.00
|
(5)
|
|
Class B-4
|
$1,834,000.00
|
(5)
|
|
Class B-5
|
$1,528,000.00
|
(5)
|
|
Class B-6
|
$919,229.61
|
(5)
|
(1)
The Pass-Through Rate for
the Class 1-A-1A, Class 1-A-1B and Class A-R Certificates will
equal the Net WAC of the Group 1 Mortgage Loans.
(2)
The Pass-Through Rate for
the Class 2-A-1A and Class 2-A-1B Certificates will equal the Net
WAC of the Group 2 Mortgage Loans.
(3)
The Pass-Through Rate for
the Class 3-A Certificates will equal the Net WAC of the Group 3
Mortgage Loans.
(4)
The Pass-Through Rate for
the Class 4-A Certificates will equal the Net WAC of the Group 4
Mortgage Loans.
(5)
The Pass-Through Rate for
these Certificates will equal the Subordinate Certificate
Pass-Through Rate.
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
SECTION 1.01. Defined Terms
.
Whenever used in this Agreement or in the
Preliminary Statement, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in
this Article. All calculations of interest described herein
shall be made on the basis of an assumed 360-day year of twelve
30-day months.
“ 1933 Act ”:
The Securities Act of 1933, as amended.
“ 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 any Servicer, but in no
event below the standard set forth in clause (x).
“ Accepted Servicing
Practices ”: With respect to any Mortgage Loan,
those customary mortgage servicing practices of prudent mortgage
servicing institutions that 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 Servicer.
“ Account ”: The
Distribution Account, the Collection Account or the Servicing
Account, as the context requires.
“ Accrual Period ”:
With respect to each Distribution Date and any Class of
Certificates, the calendar month immediately preceding the month in
which that Distribution Date occurs.
“ Accrued Interest Amount
”: For any Distribution Date and for any
Undercollateralized Group, an amount equal to one month’s
interest on the applicable Principal Deficiency Amount at the Net
WAC of the applicable Loan Group, plus any interest accrued on such
Undercollateralized Group remaining unpaid from prior Distribution
Dates.
“ Adjustment Date ”:
With respect to each Mortgage Loan, each adjustment date on
which the related Loan Rate changes pursuant to the related
Mortgage Note. The first Adjustment Date following the
Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage
Loan Schedule.
“ Advance ”: As
to any Mortgage Loan or REO Property, any advance made by the
Servicer and/or Master Servicer in respect of any Distribution Date
pursuant to Section 5.05.
“ Adverse REMIC Event
”: Either of (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets
identified as a REMIC in the Preliminary Statement to this
Agreement, or (ii) imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions, and the tax
imposed under Section 860G(d) on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be
payable from assets held as part of the Trust Fund.
“ Affiliate ”:
With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For
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 “controlling” and
“controlled” shall have meanings correlative to the
foregoing.
“ Aggregate Subordinate
Percentage ”: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the
aggregate of the Class Certificate Principal Balances of the
Classes of Subordinate Certificates and the denominator of which is
the Pool Balance for such Distribution Date.
“ Agreement ”:
This Pooling and Servicing Agreement, dated as of October 1,
2005, as amended, supplemented and otherwise modified from time to
time.
“ Applicable Credit Support
Percentage ”: As defined in Section
5.01(e).
“ Apportioned Principal
Balance ”: As to any Class of Subordinate Certificates, a
Loan Group and any Distribution Date, the Class Certificate
Principal Balance of such Class immediately prior to such
Distribution Date multiplied by a fraction, the numerator of which
is the Subordinate Component for the related Loan Group for such
date and the denominator of which is the sum of the Subordinate
Components (in the aggregate).
“ Assignment ”:
As to any Mortgage, an assignment of mortgage, notice of
transfer or equivalent instrument, in recordable form, which is
sufficient, under the laws of the jurisdiction in which the related
Mortgaged Property is located, to reflect or record the sale of
such Mortgage.
“ Available Funds ”:
As to any Distribution Date and any Loan Group, an amount
equal to (i) the sum of (a) the aggregate of the Monthly
Payments received on or prior to the related Determination Date
(excluding Monthly Payments due in future Due Periods but received
by the related Determination Date) in respect of the Mortgage Loans
in that Loan Group, (b) Net Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments, Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage
Loans in that Loan Group received during the related Prepayment
Period, (c) the aggregate of any amounts received in respect of REO
Properties for such Distribution Date in respect of the Mortgage
Loans in that Loan Group, (d) the sum of (i) the amount
remitted to the Collection Account by the Servicer on the
related Servicer Remittance Date pursuant to Section 3.24 hereof
and (ii) the amount of Compensating Interest Payments
remitted to the Securities Administrator by the Master
Servicer pursuant to Section 3A.12 and deposited in the
Distribution Account for that Distribution Date in each case in
respect of the Mortgage Loans in that Loan Group, (e) the
aggregate of the Purchase Prices and Substitution Adjustments
deposited in the Distribution Account during the related Prepayment
Period in respect of the Mortgage Loans in that Loan Group,
(f) any Advances in respect of delinquent Monthly Payments
made by the Servicer and/or Master Servicer for that Distribution
Date in respect of the Mortgage Loans in that Loan Group,
(g) the aggregate of any Advances made by the Master Servicer
for that Distribution Date pursuant to Section 7.02 hereof in
respect of the Mortgage Loans in that Loan Group and (h) the
Termination Price allocated to such Loan Group on the Distribution
Date on which the Trust is terminated; minus (ii) the
sum of (w) the Expense Fees for that Distribution Date in respect
of the Mortgage Loans in that Loan Group, (x) amounts in
reimbursement for Advances previously made in respect of the
Mortgage Loans in that Loan Group and other amounts as to which the
Servicer, the Securities Administrator and the Master Servicer are
entitled to be reimbursed pursuant to Section 3.11, (y) the amount
payable or reimbursable to the Trustee, the Master Servicer, the
Custodian or the Securities Administrator pursuant to Sections 8.05
and 10.03 in respect of the Mortgage Loans in that Loan Group or if
not related to a Mortgage Loan, allocated to each Loan Group on a
pro rata basis and (z) amounts deposited in the Distribution
Account in error in respect of the Mortgage Loans in that Loan
Group.
“ Bankruptcy Code ”:
The Bankruptcy Reform Act of 1978 (Title 11 of the United
States Code), as amended.
“ Bankruptcy Coverage
Termination Date ”: The date on which the Bankruptcy Loss
Coverage Amount is reduced to zero.
“ Bankruptcy Loss ”:
With respect to any Mortgage Loan, a Deficient Valuation or
Debt Service Reduction as reported by the Servicer to the Master
Servicer.
“ Bankruptcy Loss Coverage
Amount ”: As of any Determination Date, the Initial
Bankruptcy Loss Coverage Amount as reduced by the aggregate amount
of Bankruptcy Losses allocated to the Certificates since the
Cut-Off Date; provided , however , that the
Bankruptcy Loss Coverage Amount may also be reduced pursuant to a
letter from each Rating Agency to the Trustee to the effect that
any such reduction will not result in a downgrading of the then
current ratings assigned by each Rating Agency to the Classes of
Senior Certificates.
“ 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 6.02 hereof). On the Closing Date, all
Classes of the Certificates other than the Physical Certificates
shall be Book-Entry Certificates.
“ Business Day ”:
Any day other than a Saturday, a Sunday or a day on which
banking or savings institutions in the State of California, the
State of Minnesota, the State of Maryland, the State of New York or
in the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be
closed.
“ Call Option ”:
The right to terminate this Agreement and the Trust pursuant
to the second paragraph of Section 11.01(a) hereof.
“ Call Option Date ”:
As defined in Section 11.01(a) hereof.
“ Certificate ”:
Any Regular Certificate or Residual Certificate.
“ Certificate Owner ”:
With respect to each Book-Entry Certificate, any beneficial
owner thereof and with respect to each Physical Certificate, the
Certificateholder thereof.
“ Certificate Principal
Balance ”: With respect to each Certificate of a
given Class that is entitled to distributions of principal and with
respect to any date of determination, the product of (i) the Class
Certificate Principal Balance of such Class and (ii) the applicable
Percentage Interest of such Certificate.
“ Certificate Register
” and “ Certificate Registrar ”: The
register maintained and registrar appointed pursuant to Section
6.02 hereof. Wells Fargo Bank, N.A. will act as Certificate
Registrar on behalf of the Trustee, for so long as it is the
Securities Administrator under this Agreement.
“ Certificateholder ”
or “ Holder ”: The Person in whose name a
Certificate is registered in the Certificate Register, except that
a Disqualified Organization or non-U.S. Person shall not be a
Holder of a Residual Certificate for any purpose hereof.
“ Class ”:
Collectively, Certificates, or Lower Tier Interests in the
case of the Lower-Tier REMIC, that have the same priority of
payment and bear the same class designation and the form of which
is identical except for variation in the Percentage Interest
evidenced thereby.
“ Class 1-A-1A Certificate
”: Any of the Class 1-A-1A Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class 1-A-1B Certificate
”: Any of the Class 1-A-1B Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class 2-A-1A Certificate
”: Any of the Class 2-A-1A Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class 2-A-1B Certificate
”: Any of the Class 2-A-1B Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class 3-A Certificate
”: Any of the Class 3-A Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class 4-A Certificate
”: Any of the Class 4-A Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class A-R Certificate
”: The Class A-R Certificate as designated on the face
thereof executed by the Securities Administrator, and authenticated
and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit B, evidencing the ownership of the
sole class of “residual interest” in the REMICs created
hereunder and representing the right to distributions as set forth
herein and therein.
“ Class B-1 Certificate
”: Any of the Class B-1 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-2 Certificate
”: Any of the Class B-2 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-3 Certificate
”: Any of the Class B-3 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-4 Certificate
”: Any of the Class B-4 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-5 Certificate
”: Any of the Class B-5 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-6 Certificate
”: Any of the Class B-6 Certificates as designated on
the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit C, evidencing
the ownership of a “regular interest” in the REMICs
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class Certificate Principal
Balance ”: As to any Distribution Date, with
respect to any Class of Certificates, the Original Class
Certificate Principal Balance as reduced by the sum of (x) all
amounts actually distributed in respect of principal of that Class
on all prior Distribution Dates, (y) all Realized Losses, including
Bankruptcy Losses, Special Hazard Losses, Fraud Losses and Excess
Losses, if any, actually allocated to that Class on all prior
Distribution Dates and (z) in the case of the Subordinate
Certificates, any applicable Writedown Amount; provided,
however , that pursuant to Section 5.08, the Class Certificate
Principal Balance of a Class of Certificates may be increased up to
the amount of Realized Losses previously allocated to such Class,
but not reimbursed to such Class, in the event that there is a
Recovery on a related Mortgage Loan, and the Certificate Principal
Balance of any individual Certificate of such Class will be
increased by its pro rata share of the increase to such
Class for such Distribution Date.
“ Class Subordination
Percentage ”: With respect to each Class of
Subordinate Certificates and any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the Class
Certificate Principal Balance of such Class immediately before such
Distribution Date and the denominator of which is the aggregate of
the Class Certificate Principal Balances of all Classes of
Certificates immediately before such Distribution Date.
“ Close of Business ”:
As used herein, with respect to any Business Day and
location, 5:00 p.m. at such location.
“ Closing Date ”:
November 4, 2005.
“ Code ”: The
Internal Revenue Code of 1986, as amended.
“Collection Account
”: The account or accounts
created and maintained or caused to be created and maintained by
the Servicer pursuant to Section 3.10(a), which shall be entitled
“Provident Funding Associates, L.P., as Servicer for Deutsche
Bank National Trust Company, as Trustee, in trust for registered
Holders of Provident Funding Mortgage Loan Trust 2005-2, Mortgage
Pass-Through Certificates, Series 2005-2”, and which must be
an Eligible Account.
“ Commission ”:
U.S. Securities and Exchange Commission.
“ Compensating Interest
Payment ”: With respect to any Distribution Date,
an amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all
shortfalls as a result of Relief Act Reductions) required to be
paid by the Servicer pursuant to Section 3.24 of this Agreement
with respect to such Distribution Date, exceeds (y) the aggregate
amount actually paid by the Servicer in respect of such shortfalls;
provided, that such amount, to the extent payable by the
Master Servicer, shall not exceed the aggregate Master Servicing
Fee that would be payable to the Master Servicer in respect of such
Distribution Date without giving effect to any Compensating
Interest Payment.
“ Corporate Trust Office
”: With respect to the Trustee, 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 1761 East St. Andrew Place, Santa Ana, CA
92705, Attention: Provident 2005-2 (GC05P2), or at such other
address as the Trustee may designate from time to time by notice to
the Certificateholders, the Depositor, the Servicer, the Securities
Administrator and the Seller. With respect to the Certificate
Registrar and presentment of Certificates for registration of
transfer, exchange or final payment, Wells Fargo Bank, N.A., Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services, Provident Funding Mortgage
Loan Trust 2005-2. With respect to the Securities
Administrator, for any other purpose, Wells Fargo Bank, N.A., 9062
Old Annapolis Road, Columbia, Maryland 21045, Attention : Client
Manager – Provident Funding Mortgage Loan Trust
2005-2.
“Corresponding
Class” : With respect to
each Lower Tier Interest, the Class or Classes of Certificates
identified in the Preliminary Statement as corresponding to such
Lower Tier Interest.
“ Custodian ”:
Deutsche Bank National Trust Company and its successors
acting as custodian of the Mortgage Files.
“ Cut-Off Date ”:
With respect to any Mortgage Loan other than a Qualified
Substitute Mortgage Loan, the Close of Business in New York City on
October 1, 2005. With respect to any Qualified Substitute
Mortgage Loan, the date designated as such on the Mortgage Loan
Schedule (as amended).
“ Cut-Off Date Aggregate
Principal Balance ”: The aggregate of the Cut-Off Date
Principal Balances of all of the Mortgage Loans.
“ Cut-Off Date Principal
Balance ”: With respect to any Mortgage Loan, the
principal balance thereof remaining to be paid, after application
of all scheduled principal payments due on or before the Cut-Off
Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified
Substitute Mortgage Loan).
“ Debt Service Reduction
”: With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for that Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code,
unless the reduction results from a Deficient Valuation.
“ 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
”: Any Certificate evidenced by a Physical Certificate
and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 6.02(c) or (d) hereof.
“ Deleted Mortgage Loan
”: A Mortgage Loan replaced or to be replaced by one or
more Qualified Substitute Mortgage Loans.
“ Delinquent ”:
Any Mortgage Loan with respect to which the Monthly Payment
due on a Due Date is not made.
“ Depositor ”:
Greenwich Capital Acceptance, Inc., a Delaware corporation,
or any successor in interest.
“ Depository ”:
The initial Depository shall be The Depository Trust Company,
whose nominee 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 Participant
”: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited
with the Depository.
“ Determination Date
”: For any Distribution Date the 10th day of each month
or if such day is not a Business Day, the next preceding Business
Day.
“Directly
Operate” : With
respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon
or any use of such REO Property in a trade or business conducted by
any REMIC formed hereby other than through an Independent
Contractor; provided, however , that the Trustee (or a
Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or a
Servicer on behalf of the Trustee) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs or capital expenditures
with respect to such REO Property.
“ Disqualified Organization
”: A “disqualified organization” defined in
Section 860E(e)(5) of the Code, or any other Person so designated
by the Trustee based upon an Opinion of Counsel provided to the
Trustee by nationally recognized counsel acceptable to the Trustee
that the holding of an ownership interest in the Residual
Certificate by such Person may cause the Trust Fund or any Person
having an ownership interest in any Class of Certificates (other
than such Person) to incur liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the
transfer of an ownership interest in the Residual Certificate to
such Person.
“ Distribution Account
”: The trust account or accounts created and maintained
by the Securities Administrator, on behalf of the Trustee pursuant
to Section 3.11 hereof in the name of the Securities Administrator,
as Paying Agent for the Trustee and the Certificateholders and
designated “Distribution Account, Wells Fargo Bank, N.A. for
the benefit of Deutsche Bank National Trust Company, as Trustee, in
trust for the registered Certificateholders of Provident Funding
Mortgage Loan Trust 2005-2, Mortgage Pass-Through Certificates,
Series 2005-2” and which must be an Eligible
Account.
“ Distribution Account
Income ”: As to any Distribution Date, any interest
or other investment income earned on funds deposited in the
Distribution Account during the month of such Distribution
Date.
“ Distribution Date ”:
The 25th day of the month, or, if such day is not a Business
Day, the next Business Day, commencing in November 2005.
“ Distribution Date
Statement ”: As defined in Section 5.04(a)
hereof.
“ Due Date ”:
With respect to each Mortgage Loan and any Distribution Date,
the first day of the calendar month in which that Distribution Date
occurs on which the Monthly Payment for such Mortgage Loan was due,
exclusive of any days of grace.
“ Due Period ”:
With respect to any Distribution Date, the period commencing
on the second day of the month preceding the month in which that
Distribution Date occurs and ending on the first day of the month
in which that Distribution Date occurs.
“ Eligible Account ”:
Any of
(i)
an account or accounts maintained with a
federal or state chartered depository institution or trust company
the short-term unsecured debt obligations of which (or, in the case
of a depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short
term rating category of each Rating Agency at the time any amounts
are held on deposit therein;
(ii)
an account or accounts the deposits in
which are fully insured by the FDIC (to the limits established by
it), the uninsured deposits in which account are otherwise secured
such that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders will have
a claim with respect to the funds in the account or a perfected
first priority security interest against the collateral (which
shall be limited to Permitted Investments) securing those funds
that is superior to claims of any other depositors or creditors of
the depository institution with which such account is
maintained;
(iii)
a trust account or accounts maintained
with the trust department of a federal or state chartered
depository institution, national banking association or trust
company acting in its fiduciary capacity; or
(iv)
an account otherwise acceptable to each
Rating Agency without reduction or withdrawal of its then current
ratings of the Certificates as evidenced by a letter from each
Rating Agency to the Trustee. Eligible Accounts may bear
interest.
“ ERISA ”: The
Employee Retirement Income Security Act of 1974, as
amended.
“ ERISA-Qualifying
Underwriting ”: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter’s Exemption.
“ ERISA-Restricted
Certificates ”: The Class 3-A, Class 4-A, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and
Class A-R Certificates and any Certificate that does not satisfy
the applicable rating requirement under the Underwriter’s
Exemption.
“ Escrow Payments ”:
The amounts constituting ground rents, taxes, assessments,
water rates, fire and hazard insurance premiums and other payments
required to be escrowed by the Mortgagor with the mortgagee
pursuant to any Mortgage Loan.
“ Event of Default ”:
Any one of the events (howsoever described) set forth in
Section 7.01 hereof as an event or events upon the occurrence and
continuation of which the Servicer may be terminated.
“ Excess Loss ”:
With respect to the Mortgage Loans, the amount of any (i)
Fraud Loss realized after the Fraud Loss Coverage Termination Date,
(ii) Special Hazard Loss realized after the Special Hazard Coverage
Termination Date or (iii) Bankruptcy Loss realized after the
Bankruptcy Coverage Termination Date.
“ Expense Fee ” With
respect to any Mortgage Loan, the sum of (x) the Master Servicing
Fee and (y) the Servicing Fee.
“ Expense Fee Rate ”:
With respect to any Mortgage Loan, the sum of the Servicing
Fee Rate and the Master Servicing Fee Rate.
“ Fannie Mae ”:
The Federal National Mortgage Association or any successor
thereto.
“ FDIC ”: The
Federal Deposit Insurance Corporation or any successor
thereto.
“ Final Recovery
Determination ”: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or
REO Property purchased by the Seller pursuant to or as contemplated
by Sections 2.03 and 11.01), a determination made by the Servicer,
that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which such Servicer expects to be finally
recoverable in respect thereof have been so recovered.
“ Fraud Loan ”: A
Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
“ Fraud Loss Coverage Amount
”: As of the Closing Date, $18,343,510, subject to reduction
from time to time by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-Off
Date, the Fraud Loss Coverage Amount will be reduced as follows:
(a) on the first anniversary of the Cut-Off Date, to an amount
equal to the lesser of (i) 2.00% of the then current Pool Balance
and (ii) the excess of the Fraud Loss Coverage Amount as of
the Cut-Off Date over the cumulative amount of Fraud Losses
allocated to the Certificates since the Cut-Off Date; (b) on the
second, third and fourth anniversaries of the Cut-Off Date, to an
amount equal to the lesser of (i) 1.00% of the then current Pool
Balance and (ii) the excess of the Fraud Loss Coverage Amount as of
the preceding anniversary of the Cut-Off Date over the cumulative
amount of Fraud Losses allocated to the Certificates since the
preceding anniversary; and (c) on the fifth anniversary of the
Cut-Off Date, to zero; provided, however, that the Fraud
Loss Coverage Amount may also be reduced pursuant to a letter from
each of the Rating Agencies to the Trustee to the effect that any
such reduction will not result in the downgrading of the then
current ratings assigned by each Rating Agency, respectively, to
the Classes of Senior Certificates.
“ Fraud Loss Coverage
Termination Date ”: The date on which the Fraud
Loss Coverage Amount is reduced to zero.
“ Fraud Losses ”:
Realized Losses on any Mortgage Loans sustained by reason of a
default arising from fraud, dishonesty or misrepresentation in
connection with that Mortgage Loan as reported by the Servicer to
the Master Servicer.
“ Freddie Mac ”:
The Federal Home Loan Mortgage Corporation or any successor
thereto.
“ GCFP ”:
Greenwich Capital Financial Products, Inc., and its
successors and assigns.
“ Gross Margin ”:
With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the applicable
Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Loan Rate for such
Mortgage Loan.
“ Group 1 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 2 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 3 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 4 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Indemnified Persons
”: The Trustee, the Master Servicer, the Depositor, the
Custodian and the Securities Administrator and their officers,
directors, agents and employees and, with respect to the Trustee,
any separate co-trustee and its officers, directors, agents and
employees.
“ Independent ”:
When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor and its
Affiliates, (b) does not have any direct financial interest in or
any material indirect financial interest in the Depositor or any
Affiliate thereof, and (c) is not connected with the Depositor or
any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing
similar functions; provided, however , that a Person shall
not fail to be Independent of the Depositor or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor or any
Affiliate thereof.
“Independent
Contractor” :
Either (i) any Person that would be an “independent
contractor” with respect to any REMIC formed hereby within
the meaning of Section 856(d)(3) of the Code if such REMIC were a
real estate investment trust (except that the ownership tests set
forth in that section shall be considered to be met by any Person
that owns, directly or indirectly, 35% or more of any Class of
Certificates), so long as no REMIC formed hereby receives or
derives any income from such Person and provided that the
relationship between such Person and the applicable REMIC is at
arm’s length, all within the meaning of Treasury Regulation
Section 1.856-4(b)(5), or (ii) any other Person (including the
Master Servicer) if the Trustee has received an Opinion of Counsel
to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to
qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code),
or cause any income realized in respect of such REO Property to
fail to qualify as Rents from Real Property.
“ Index ”:
One-Year CMT, Six-Month LIBOR or One-Year LIBOR. With
respect to each Mortgage Loan and each Adjustment Date, the index
shall be specified in the related Mortgage Note.
“ Initial Bankruptcy Loss
Coverage Amount ”: $153,615.
“ Initial Certificate Principal
Balance ”: With respect to any Certificate, the
amount designated “Initial Certificate Principal
Balance” on the face thereof.
“ Insurance Proceeds
”: With respect to any Mortgage Loan, proceeds of any
title policy, hazard policy or other insurance policy covering a
Mortgage Loan, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with this Agreement.
“ Interest Distributable
Amount ”: With respect to any Distribution Date and
each Class of Certificates, the sum of (i) the Monthly
Interest Distributable Amount for that Class and (ii) the
Unpaid Interest Shortfall Amount for that Class.
“ Interest Shortfall
”: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the
subject of a Principal Prepayment or a reduction of its Monthly
Payment under the Relief Act, an amount determined as
follows:
(a)
Principal Prepayments in part received
during the relevant Prepayment Period : the difference between (i) one month’s
interest at the applicable Net Loan Rate on the amount of such
prepayment and (ii) the amount of interest for the calendar month
of such prepayment (adjusted to the applicable Net Loan Rate)
actually received with respect to such prepayment at the time of
such prepayment; and
(b)
Principal Prepayments in full received
during the relevant Prepayment Period : the difference between (i) one month’s
interest at the applicable Net Loan Rate on the Stated Principal
Balance of such Mortgage Loan immediately prior to such prepayment
and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) actually
received with respect to such prepayment at the time of such
prepayment; and
(c)
the amount of any Relief Act Reductions
for such Distribution Date.
“Late
Collections” :
With respect to any Mortgage Loan, all amounts received
subsequent to the Determination Date immediately following any
related Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest
due (without regard to any acceleration of payments under the
related Mortgage and Mortgage Note) but delinquent on a contractual
basis for such Due Period and not previously recovered.
“ Latest Possible Maturity
Date ”: As determined as of the Cut-Off Date, the
Distribution Date following the fifth anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the Cut-Off Date.
“ Liquidation Event ”:
With respect to any Mortgage Loan, any of the following
events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii)
such Mortgage Loan is removed from the Trust Fund by reason of its
being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the
following events: (i) a Final Recovery Determination is made as to
such REO Property; or (ii) such REO Property is removed from the
Trust Fund by reason of its being sold or purchased pursuant to
Section 11.01 hereof or the applicable provisions of this
Agreement.
“ Liquidation Expenses
”: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the
Servicer, such expenses including (a) property protection expenses,
(b) property sales expenses, (c) foreclosure and sale costs,
including court costs and reasonable attorneys’ fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
“ Liquidated Mortgage Loan
”: As to any Distribution Date, any Mortgage Loan in
respect of which the Servicer has determined, in accordance with
the servicing procedures specified herein, as of the end of the
related Prepayment Period, that all Liquidation Proceeds that it
expects to recover with respect to the liquidation of such Mortgage
Loan or disposition of the related REO Property have been
recovered.
“ Liquidation Proceeds
”: With respect to any Mortgage Loan, the amount (other
than amounts received in respect of the rental of any REO Property
prior to REO Disposition) received by the Servicer as proceeds from
the liquidation of such Mortgage Loan other than Recoveries, as
determined in accordance with the provisions specified herein;
provided that with respect to any Mortgage Loan or REO
Property repurchased, substituted or sold pursuant to or as
contemplated hereunder, “Liquidation Proceeds” shall
also include amounts realized in connection with such repurchase,
substitution or sale.
“ Loan Group ”:
Any of Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group
4 as the context requires.
“ Loan Group Balance
”: As to each Loan Group, the aggregate of the Stated
Principal Balances of the Mortgage Loans in such Loan Group that
were Outstanding Mortgage Loans at the time of
determination.
“ Loan Group 1 ”:
At any time, the Group 1 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 2 ”:
At any time, the Group 2 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 3 ”:
At any time, the Group 3 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 4 ”:
At any time, the Group 4 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Rate ”:
With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
With respect to each Mortgage Loan that becomes an REO
Property, as of any date of determination, the annual rate
determined in accordance with the immediately preceding sentence as
of the date such Mortgage Loan became an REO Property.
“ Loan-to-Value Ratio
”: With respect to each Mortgage Loan and any date of
determination, a fraction, expressed as a percentage, the numerator
of which is the Principal Balance of the Mortgage Loan at such date
of determination and the denominator of which is the Value of the
related Mortgaged Property.
“ Lost Note Affidavit
”: With respect to any Mortgage Loan as to which the
original Mortgage Note has been permanently lost or destroyed and
has not been replaced, an affidavit from the Seller certifying that
the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying
the Trust against any loss, cost or liability resulting from the
failure to deliver the original Mortgage Note) in the form of
Exhibit H hereto.
“Lower Tier Interest
”: As described in the
Preliminary Statement.
“Lower Tier REMIC
”: As described in the
Preliminary Statement.
“ Majority
Certificateholders ”: The Holders of Certificates
evidencing at least 51% of the Voting Rights.
“ Master Servicer ”:
Wells Fargo Bank, N.A., or any successor Master Servicer
appointed as herein provided.
“Master Servicing
Fee” : With
respect to any Mortgage Loan and Distribution Date, the product of
(x) Master Servicing Fee Rate and (y) the Principal Balance of such
Mortgage Loan on the first day of the related Due
Period.
“Master Servicing Fee
Rate ”: 0.0075%
per annum.
“ Maximum Loan Rate ”:
With respect to each Mortgage Loan, the percentage set forth
in the related Mortgage Note as the maximum Loan Rate
thereunder.
“ MERS ”:
Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or
any successor thereto.
“ MERS Mortgage Loan
”: Any Mortgage Loan registered with MERS on the MERS
System.
“ MERS® System
”: The system of recording transfers of mortgages
electronically maintained by MERS.
“ MIN ”: The
Mortgage Identification Number for any MERS Mortgage
Loan.
“ 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 Interest Distributable
Amount ”: With respect to each Class of
Certificates and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the related
Pass-Through Rate on the Class Certificate Principal Balance of
that Class immediately prior to that Distribution Date;
provided, however , that for purposes of compliance with the
REMIC Provisions, (A) the Monthly Interest Distributable Amount for
each Class of Subordinate Certificates shall be calculated by
reducing the related Pass-Through Rate by a per annum rate equal to
(i) 12 times the Subordinate Class Expense Share for such Class
divided by (ii) the Class Certificate Principal Balance of
such Class as of the beginning of the Accrual Period and (B) such
Class shall be deemed to bear interest at such Pass-Through Rate as
so reduced for federal income tax purposes
“ Monthly Payment ”:
With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan that is
payable by the related Mortgagor from time to time under the
related Mortgage Note, determined, for the purposes of this
Agreement: (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 Servicer
pursuant to the applicable provisions of this Agreement; and (c) on
the assumption that all other amounts, if any, due under such
Mortgage Loan are paid when due.
“ Moody’s ”:
Moody’s Investors Service, Inc. and its
successors.
“ Mortgage ”:
The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged
Property securing a Mortgage Note.
“ Mortgage File ”:
The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional
documents required to be added to the Mortgage File pursuant to
this Agreement.
“ Mortgage Loan ”:
Each mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time held as a part of the Trust Fund, the Mortgage Loans so held
being identified in the Mortgage Loan Schedule.
“ Mortgage Loan Purchase
Agreement ”: The Mortgage Loan Purchase Agreement
between the Sellers and the Depositor, dated as of October 1, 2005,
regarding the transfer of the Mortgage Loans by the Sellers to or
at the direction of the Depositor.
“ Mortgage Loan Schedule
”: As of any date, the list of Mortgage Loans included
in the Trust Fund on such date, attached hereto as Schedule I.
The Mortgage Loan Schedule shall be prepared by the Seller
and shall set forth the following information with respect to each
Mortgage Loan:
(i)
the Mortgage Loan identifying
number;
(ii)
the Mortgagor’s name;
(iii)
the street address of the Mortgaged
Property including the state and five-digit ZIP code;
(iv)
a code indicating whether the Mortgaged
Property was represented by the borrower, at the time of
origination, as being owner-occupied;
(v)
a code indicating whether the Residential
Dwelling constituting the Mortgaged Property is (a) a detached
single family dwelling, (b) a dwelling in a planned unit
development, (c) a condominium unit, (d) a two- to four-unit
residential property, (e) a townhouse or (f) other type of
Residential Dwelling;
(vi)
if the related Mortgage Note permits the
borrower to make Monthly Payments of interest only for a specified
period of time, (a) the original number of such specified Monthly
Payments and (b) the remaining number of such Monthly Payments as
of the Cut-Off Date;
(vii)
the original months to
maturity;
(viii)
the stated remaining months to maturity
from the Cut-Off Date based on the original amortization
schedule;
(ix)
the Loan-to-Value Ratio at
origination;
(x)
[reserved];
(xi)
the Loan Rate in effect immediately
following the Cut-Off Date;
(xii)
the date on which the first Monthly
Payment is or was due on the Mortgage Loan;
(xiii)
the stated maturity date;
(xiv)
the Servicing Fee Rate, if any
(xv)
[reserved];
(xvi)
the last Due Date on which a Monthly
Payment was actually applied to the unpaid Stated Principal
Balance;
(xvii)
the original principal balance of the
Mortgage Loan;
(xviii)
the Stated Principal Balance of the
Mortgage Loan on the Cut-Off Date and a code indicating the purpose
of the Mortgage Loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xix)
the related Index and Gross Margin
specified in related Mortgage Note;
(xx)
the next Adjustment Date, if
applicable;
(xxi)
the Maximum Loan Rate, if
applicable;
(xxii)
the Value of the Mortgaged
Property;
(xxiii)
the sale price of the Mortgaged Property,
if applicable;
(xxiv)
the product code;
(xxv)
[reserved];
(xxvi)
the respective Loan Group;
(xxvii)
the Custodian’s name;
and
(xxviii)
the Servicer that is servicing each
Mortgage Loan and the originator of each Mortgage Loan.
Information set forth in clauses (ii) and
(iii) above regarding each Mortgagor and the related Mortgaged
Property shall be confidential and the Trustee (or Master Servicer)
shall not disclose such information; provided that ,
notwithstanding anything herein to the contrary, the foregoing
shall not be construed to prohibit (i) disclosure of any and all
information that is or becomes publicly known, or information
obtained by Trustee (or Master Servicer) from sources other than
the other parties hereto, (ii) disclosure of any and all
information (A) if required to do so by any applicable, law, rule
or regulation, (B) to any government agency or regulatory body
having or claiming authority to regulate or oversee any respects of
Trustee’s (or Master Servicer’s) business or that of
its affiliates, (C) pursuant to any subpoena, civil investigative
demand or similar demand or request of any court, regulatory
authority, arbitrator or arbitration to which Trustee (or Master
Servicer) or any affiliate or an officer, director, employer or
shareholder thereof is a party or (D) to any affiliate, independent
or internal auditor, agent, employee or attorney of Trustee (or
Master Servicer) having a need to know the same, provided
that Trustee (or Master Servicer) advises such recipient of the
confidential nature of the information being disclosed, or (iii)
any other disclosure authorized by the Depositor or Master
Servicer.
The Mortgage Loan Schedule, as in effect
from time to time, shall also set forth the following information
with respect to the Mortgage Loans in the aggregate and by Loan
Group as of the Cut-Off Date: (1) the number of Mortgage
Loans; (2) the current Principal Balance of the Mortgage
Loans; (3) the weighted average Loan Rate of the Mortgage
Loans; and (4) the weighted average remaining months to
maturity of the Mortgage Loans. The Mortgage Loan Schedule
shall be amended from time to time by the Seller in accordance with
the provisions of this Agreement.
“ Mortgage Note ”:
The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
“ Mortgaged Property
”: Either of the fee simple or leasehold interest in
real property, together with improvements thereto including any
exterior improvements to be completed within 120 days of
disbursement of the related Mortgage Loan proceeds.
“ Mortgagor ”:
The obligor on a Mortgage Note.
“ Net Interest Shortfall
”: With respect to any Distribution Date and Mortgage
Loan Group, the excess of Interest Shortfalls, if any, for such
Distribution Date over the sum of (a) the amount remitted on the
related Servicer Remittance Date by the Servicer to the Collection
Account pursuant to Section 3.24 and (b) Compensating Interest
Payments made with respect to such Distribution Date in each case
in respect of such Mortgage Loan Group.
“ Net Liquidation Proceeds
”: With respect to any Liquidated Mortgage Loan or any
other disposition of related Mortgaged Property (including REO
Property) the related Liquidation Proceeds net of Advances,
Servicing Advances, the Master Servicing Fee, the Servicing Fee and
any other accrued and unpaid servicing fees received and retained
in connection with the liquidation of such Mortgage Loan or
Mortgaged Property.
“ Net Loan Rate ”:
With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of
interest equal to the then applicable Loan Rate for such Mortgage
Loan minus the related Expense Fee Rate.
“ Net Realized Losses
”: For any Class of Certificates and any Distribution
Date, the excess of (i) the amount of Realized Losses previously
allocated to that Class over (ii) the amount of any increases to
the Class Certificate Principal Balance of that Class pursuant to
Section 5.08 due to Recoveries.
“ Net WAC ”: For
any Loan Group and with respect to any Distribution Date, the
weighted average of the Net Loan Rates of the Mortgage Loans in
such Loan Group as of the first day of the month preceding the
month in which such Distribution Date occurs (or, in the case of
the first Distribution Date, as of the Cut-Off Date), weighted on
the basis of the related Stated Principal Balances at the beginning
of the related Due Period.
“New Lease”
: Any lease of REO Property entered
into on behalf of the Trust, including any lease renewed or
extended on behalf of the Trust if the Servicer on behalf of the
Trust has the right to renegotiate the terms of such
lease.
“ Nonrecoverable ”:
A determination by the Master Servicer or the Servicer in
respect of a delinquent Mortgage Loan that if it were to make an
Advance or an advance of a delinquent Monthly Payment,
respectively, in respect thereof, such amount would not be
recoverable from any collections or other recoveries (including
Liquidation Proceeds) on such Mortgage Loan.
“ Officers’
Certificate ”: A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a
vice president (however denominated), or by the Treasurer, the
Secretary, or one of the assistant treasurers or assistant
secretaries of a Seller, the Master Servicer, the Servicer or the
Depositor, as applicable.
“ One-Year CMT ”:
The weekly average yield on United States Treasury securities
adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519).
“ One-Year CMT Indexed
”: Indicates a Mortgage Loan that has an adjustable
Loan Rate calculated on the basis of the One-Year CMT
index.
“ One-Year LIBOR ”:
The average of interbank offered rates for one-year U.S.
dollar deposits in the London market based on quotations of major
banks.
“ One-Year LIBOR Indexed
”: Indicates a Mortgage Loan that has an adjustable Loan Rate
calculated on the basis of the One-Year LIBOR index.
“ Opinion of Counsel
”: A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor, the Sellers,
the Master Servicer, the Servicer, the Trustee or the Securities
Administrator, acceptable to the Trustee, except that any opinion
of counsel relating to (a) the qualification of any REMIC created
hereunder as a REMIC or (b) compliance with the REMIC Provisions
must be an opinion of Independent counsel.
“ Original Applicable Credit
Support Percentage ”: With respect to each Class of
Subordinate Certificates, the corresponding percentage set forth
below opposite its Class designation:
|
Class B-1
|
3.40%
|
|
Class B-2
|
1.70%
|
|
Class B-3
|
1.00%
|
|
Class B-4
|
0.70%
|
|
Class B-5
|
0.40%
|
|
Class B-6
|
0.15%
|
“ Original Class Certificate
Principal Balance ”: With respect to each Class of
Certificates, the corresponding aggregate amount set forth opposite
the Class designation of such Class in the Preliminary
Statement.
“ Original Subordinated
Principal Balance ”: The aggregate of the Original
Class Certificate Principal Balances of the Classes of Subordinate
Certificates.
“ OTS ”: The
Office of Thrift Supervision.
“ Outstanding Mortgage Loan
”: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero, that was not the subject of a
prepayment in full prior to such Due Date and that did not become a
Liquidated Mortgage Loan prior to such Due Date.
“ Ownership Interest
”: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein,
whether direct or indirect, legal or beneficial, as owner or as
pledgee.
“ PAM ”:
Provident Asset Management, L.P.
“ Pass-Through Rate ”:
With respect to each Class of Certificates and any
Distribution Date, the rate set forth below:
(i)
The Pass-Through Rate for the Class
1-A-1A and Class 1-A-1B Certificates shall be equal to the Net WAC
for Loan Group 1 for such Distribution Date;
(ii)
The Pass-Through Rate for the Class
2-A-1A and Class 2-A-1B Certificates shall be equal to the Net WAC
for Loan Group 2 for such Distribution Date;
(iii)
The Pass-Through Rate for the Class 3-A
Certificates shall be equal to the Net WAC for Loan Group 3 for
such Distribution Date;
(iv)
The Pass-Through Rate for the Class 4-A
Certificates shall be equal to the Net WAC for Loan Group 4 for
such Distribution Date;
(v)
The Pass-Through Rate for the Class A-R
Certificates shall be equal to the Net WAC for Loan Group 1 for
such Distribution Date; and
(vi)
The Pass-Through Rate for the Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall be equal to the Subordinate Certificate
Pass-Through Rate for such Distribution Date.
“ Paying Agent ”:
Any paying agent appointed pursuant to Section 6.05 hereof.
The initial Paying Agent shall be Wells Fargo Bank, N.A., for
so long as it is acting as Securities Administrator under this
Agreement.
“ Percentage Interest
”: With respect to any Certificate other than a Class
A-R Certificate, a fraction, expressed as a percentage, the
numerator of which is the Initial Certificate Principal Balance
represented by such Certificate and the denominator of which is the
Original Class Certificate Principal Balance of the related Class.
With respect to the Class A-R Certificate, 100%.
“ Permitted Investments
”: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the Depositor, the
Master Servicer, the Trustee or any of their respective Affiliates
or for which an Affiliate of the Trustee or the Master Servicer
serves as an advisor:
(i)
direct obligations of, or obligations
fully guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit
of the United States;
(ii)
(A) demand and time deposits in,
certificates of deposit of, bankers’ acceptances issued by or
federal funds sold by any depository institution or trust company
(including the Trustee, the Master Servicer or their agents acting
in their respective commercial capacities) incorporated under the
laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has
a short-term uninsured debt rating in one of the two highest
available rating categories of each Rating Agency and (B) any other
demand or time deposit or deposit which is fully insured by the
FDIC;
(iii)
repurchase obligations with respect to
any security described in clause (i) above and entered into
with a depository institution or trust company (acting as
principal) rated A and A2 or higher by S&P and Moody’s,
respectively;
(iv)
securities bearing interest or sold at a
discount that are issued by any corporation incorporated under the
laws of the United States of America, the District of Columbia or
any State thereof and that are rated by the Rating Agencies in
their highest long-term unsecured rating categories at the time of
such investment or contractual commitment providing for such
investment;
(v)
commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations) that is rated by the Rating Agencies in their highest
short-term unsecured debt rating available at the time of such
investment;
(vi)
units of money market funds (which may be
12b-1 funds, as contemplated by the Commission under the Investment
Company Act of 1940) registered under the Investment Company Act of
1940 including funds managed or advised by the Trustee, the Master
Servicer or an affiliate thereof having the highest applicable
rating from each Rating Agency; and
(vii)
if previously confirmed in writing to the
Trustee, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to
the Rating Agencies in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial
ratings of the Senior Certificates;
provided , however , that no instrument described
hereunder shall evidence either the right to receive (a) only
interest with respect to the obligations underlying such instrument
or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and
principal payments with respect to such instrument provide a yield
to maturity at par greater than 120% of the yield to maturity at
par of the underlying obligations.
“ Permitted Transferee
”: Any Transferee of a Residual Certificate other than
a Disqualified Organization or a non-U.S. Person.
“ 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.
“ PFA ”:
Provident Funding Associates, L.P.
“ Physical Certificates
”: The Class A-R Certificates.
“ Pool Balance ”:
As to any Distribution Date, the aggregate of the Stated
Principal Balances, as of the Close of Business on the first day of
the month preceding the month in which such Distribution Date
occurs, of the Mortgage Loans that were Outstanding Mortgage Loans
on that day.
“ Prepayment Period ”:
With respect to any Distribution Date the calendar month
preceding the month in which such Distribution Date
occurs.
“ Primary Insurance Policy
”: Mortgage guaranty insurance, if any, on an
individual Mortgage Loan, as evidenced by a policy or
certificate.
“ Principal Balance ”:
As to any Mortgage Loan, other than a Liquidated Mortgage
Loan, and any day, the related Cut-Off Date Principal Balance,
minus all collections credited against the Principal Balance
of such Mortgage Loan after the Cut-Off Date. For purposes of
this definition, a Liquidated Mortgage Loan shall be deemed to have
a Principal Balance equal to the Principal Balance of the related
Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. As to
any REO Property and any day, the Principal Balance of the related
Mortgage Loan immediately prior to such Mortgage Loan becoming REO
Property.
“ Principal Deficiency
Amount ”: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate
Class Certificate Principal Balance of such Undercollateralized
Group immediately prior to such Distribution Date over the sum of
the Principal Balances of the Mortgage Loans in the related Loan
Group immediately prior to such Distribution Date.
“ Principal Distribution
Amount ”: With respect to each Loan Group and any
Distribution Date, the sum of (a) each scheduled payment of
principal collected or advanced on the related Mortgage Loans
(before taking into account any Deficient Valuations or Debt
Service Reductions) by the Servicer or the Master Servicer in
respect of the related Due Period, (b) that portion of the
Purchase Price, representing principal of any repurchased Mortgage
Loan in that Loan Group, deposited to the Distribution Account
during the related Prepayment Period, (c) the principal
portion of any related Substitution Adjustments with respect to
that Loan Group deposited in the Distribution Account during the
related Prepayment Period, (d) the principal portion of all
Insurance Proceeds received during the related Prepayment Period
with respect to Mortgage Loans in that Loan Group that are not yet
Liquidated Mortgage Loans, (e) the principal portion of all
Net Liquidation Proceeds received during the related Prepayment
Period with respect to Liquidated Mortgage Loans in that Loan
Group, (f) all Principal Prepayments in part or in full on
Mortgage Loans in that Loan Group applied by the Servicer or the
Master Servicer during the related Prepayment Period, (g) all
Recoveries related to that Loan Group received during the calendar
month preceding the month of that Distribution Date and (h) on
the Distribution Date on which the Trust is to be terminated
pursuant to Section 11.01 hereof, that portion of the Termination
Price in respect of principal for that Loan Group.
“ Principal Prepayment
”: Any payment of principal made by the Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest representing
the full amount of scheduled interest due on any Due Date in any
month or months subsequent to the month of prepayment.
“ Private Certificates
”: The Class B-4, Class B-5 and Class B-6 Certificates
and any Class of Certificates which has not been issued pursuant to
a registration statement which been declared effective under the
1933 Act (as of the Closing Date, such Classes include the Class
3-A, Class 4-A, Class B-1, Class B-2 and Class B-3
Certificates).
“ Private Placement
Memorandum ”: The Private Placement Memorandum
dated November 4, 2005 relating to the initial sale of the Class
B-4, Class B-5 and Class B-6 Certificates.
“ Pro Rata Share ”:
As to any Distribution Date and any Class of Subordinate
Certificates, the portion of the Subordinate Principal Distribution
Amount allocable to such Class, equal to the product of the (a)
Subordinate Principal Distribution Amount on such date and (b) a
fraction, the numerator of which is the related Class Certificate
Principal Balance of that Class and the denominator of which is the
aggregate of the Class Certificate Principal Balances of all the
Classes of Subordinate Certificates.
“ Prospectus ”:
That certain prospectus supplement dated November 1, 2005,
together with the base prospectus dated September 26, 2005,
relating to the offering of the Class 1-A-1A, Class 1-A-1B, Class
2-A-1A and Class 2-A-1B Certificates.
“ Purchase Price ”:
With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or Section
10.01 hereof, and as confirmed by an Officers’ Certificate
from the related Seller to the Trustee and the Securities
Administrator, an amount equal to the sum of (i) 100% of the
Principal Balance thereof as of the date of purchase (or such other
price as provided in Section 10.01), plus (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal
Balance at the applicable Loan Rate (or if the servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the Servicing
Fee Rate) from the Due Date as to which interest was last covered
by a payment by the Mortgagor through the end of the calendar month
in which the purchase is to be effected, and (y) an REO
Property, the sum of (1) accrued interest on such Principal
Balance at the applicable Loan Rate (or if the servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the Servicing
Fee Rate) from the Due Date as to which interest was last covered
by a payment by the Mortgagor plus (2) REO Imputed Interest for
such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending
with the calendar month in which such purchase is to be effected,
net of the total of all net rental income, Insurance Proceeds and
Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus
(iii) any unreimbursed Servicing Advances and any unpaid
Expense Fees allocable to such Mortgage Loan or REO Property, plus
(iv) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03 hereof, expenses reasonably incurred or to
be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and
damages actually incurred and paid by or on behalf of the Trust in
connection with any breach of the representation and warranty set
forth in Schedule II, with respect to the Mortgage Loans, as the
result of a violation of a predatory or abusive lending law
applicable to such Mortgage Loan.
“ Qualified Insurer ”:
A mortgage guaranty insurance company duly qualified as such
under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with
the insurance policy issued by such insurer, duly authorized and
licensed in such states to transact a mortgage guaranty insurance
business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a Fannie Mae-approved
mortgage insurer and having a claims paying ability rating of at
least “AA” or equivalent rating by a nationally
recognized statistical rating organization. Any replacement
insurer with respect to a Mortgage Loan must have at least as high
a claims paying ability rating as the insurer it replaces had on
the Closing Date.
“ Qualified Substitute Mortgage
Loan ”: A mortgage loan substituted for a Deleted
Mortgage Loan pursuant to the terms of this Agreement which must,
on the date of such substitution, (i) have an outstanding
principal balance, after application of all scheduled payments of
principal and interest due during or prior to the month of
substitution, not in excess of, and not more than 5% less than, the
Principal Balance of the Deleted Mortgage Loan as of the Due Date
in the calendar month during which the substitution occurs,
(ii) have a maximum loan rate not less than the Maximum Loan
Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage
Loan, (iv) have the same Index as the Deleted Mortgage Loan, (v)
have its next adjustment date not more than two months after the
next Adjustment Date of the Deleted Mortgage Loan, (vi) have a
remaining term to maturity not greater than (and not more than one
year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a
Loan-to-Value Ratio as of the date of substitution equal to or
lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as
of such date, (ix) have been underwritten or re-underwritten
in accordance with the same or substantially similar underwriting
criteria and guidelines as the Deleted Mortgage Loan, (x) is of the
same or better credit quality as the Deleted Mortgage Loan and
(xi) conform to each representation and warranty set forth in
Section 2.04 hereof applicable to the Deleted Mortgage Loan.
In the event that one or more mortgage loans are substituted
for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate
principal balances, the terms described in clause (vi) hereof
shall be determined on the basis of weighted average remaining term
to maturity and the Loan-to-Value Ratio described in clause
(viii) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (x) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or
in the aggregate, as the case may be.
“ Rating Agencies ”:
S&P and/or Moody’s and any successor thereto.
If either such rating agency or its successor shall no longer
be in existence, “Rating Agencies” shall include such
nationally recognized statistical rating agency, or other
comparable Person, as shall have been designated by the Depositor,
notice of which designation shall be given to the
Trustee.
“ Realized Loss ”:
With respect to any Liquidated Mortgage Loan, the amount of
loss realized equal to the sum of (i) the portion of the Principal
Balance remaining unpaid after application of all Net Liquidation
Proceeds in respect of such Liquidated Mortgage Loan and (ii)
interest at the applicable Net Loan Rate from the related Due Date
as to which interest was last paid or advanced (and not reimbursed)
to Certificateholders up to the related Due Date in the month in
which Liquidation Proceeds are required to be distributed on the
Principal Balance of such Liquidated Mortgage Loan from time to
time.
“ Record Date ”:
With respect to each Distribution Date and all Classes of
Certificates, the last Business Day of the calendar month preceding
the month in which such Distribution Date occurs.
“ Recovery ”:
With respect to any Distribution Date and Mortgage Loan that
became a Liquidated Mortgage Loan in a month preceding the month
prior to that Distribution Date and with respect to which the
related Realized Loss was allocated to one or more Classes of
Certificates, an amount received in respect of such Liquidated
Mortgage Loan during the prior calendar month, net of any
reimbursable expenses.
“ Refinancing Mortgage Loan
”: Any Mortgage Loan originated in connection with the
refinancing of an existing mortgage loan.
“ Regular Certificate
”: Any Class 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B, Class 3-A, Class 4-A, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificate.
“ Relief Act ”:
The Servicemembers Civil Relief Act, as amended, or any
similar state or local law.
“ Relief Act Reductions
”: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount
of interest collectible thereon for the most recently ended Due
Period as a result of the application of the Relief Act, the
amount, if any, by which (i) interest collectible on that Mortgage
Loan during such Due Period is less than (ii) one month’s
interest on the Stated Principal Balance of such Mortgage Loan at
the Loan Rate for such Mortgage Loan before giving effect to the
application of the Relief Act.
“ REMIC ”: A
“real estate mortgage investment conduit” within the
meaning of Section 860D of the Code.
“ REMIC Opinion ”:
An Independent Opinion of Counsel, to the effect that the
proposed action described therein would not, under the REMIC
Provisions, result in an Adverse REMIC Event.
“ REMIC Provisions ”:
Provisions of the federal income tax law relating to real
estate mortgage investment conduits which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as
the foregoing may be in effect from time to time.
“ Remittance Report ”:
The Servicer’s Remittance Report to the Securities
Administrator providing information with respect to each Mortgage
Loan which is provided no later than the 15 th calendar
day of each month and which shall contain such information as may
be agreed upon by the Servicer, the Master Servicer and the
Securities Administrator and which shall be sufficient to enable
the Securities Administrator to prepare the related Distribution
Date Statement.
“ Rents from Real Property
”: With respect to any REO Property, gross income of
the character described in Section 856(d) of the Code.
“ REO Account ”:
The account or accounts maintained by the Servicer in respect
of an REO Property pursuant to this Agreement.
“ REO Disposition ”:
The sale or other disposition of an REO Property on behalf of
the Trust.
“ REO Imputed Interest
”: As to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust
Fund, one month’s interest at the applicable Net Loan Rate on
the Principal Balance of such REO Property (or, in the case of the
first such calendar month, of the related Mortgage Loan if
appropriate) as of the Close of Business on the Due Date in such
calendar month.
“ REO Principal Amortization
”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar
month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination
Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 11.01 hereof that is
allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to the applicable provisions of
this Agreement in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to
the Servicer pursuant to the applicable provisions of this
Agreement for unpaid Master Servicing Fees and Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing
Advances and Advances in respect of such REO Property or the
related Mortgage Loan, over (b) the REO Imputed Interest in
respect of such REO Property for such calendar month.
“ REO Property ”:
A Mortgaged Property acquired by the Servicer on behalf of
the Trust Fund through foreclosure or deed-in-lieu of foreclosure
in accordance with the applicable provisions of this
Agreement.
“Request for
Release” : A
release signed by a Servicing Officer, in the form of Exhibit F
attached hereto.
“ Residential Dwelling
”: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a condominium
project, (iv) a manufactured home or (v) a detached one-family
dwelling in a planned unit development, none of which is a mobile
home.
“ Residual Certificate
”: The Class A-R Certificate.
“ Responsible Officer
”: When used with respect to the Trustee or the
Securities Administrator, any director, the President, any vice
president, any assistant vice president, any associate or any other
officer of the Trustee or the Securities Administrator customarily
performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to
whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular
subject.
“ Restricted Classes
”: As defined in Section 5.01(e).
“ Restricted Global Security
”: As defined in Section 6.01.
“S&P”
: Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
“ Securities Administrator
”: Wells Fargo Bank, N.A., or its successor in
interest, or any successor securities administrator appointed as
herein provided.
“ Seller ”:
Provident Asset Management, L.P. or Provident Funding
Associates, L.P., as applicable, in each case in its capacity as a
seller under this Agreement.
“ Senior Certificate
”: Any one of the Class 1-A-1A, Class 1-A-1B, Class
2-A-1A, Class 2-A-1B, Class 3-A, Class 4-A or Class A-R
Certificates.
“ Senior Certificate Group
”: Any of (a) the Class 1-A-1A, Class 1-A-1B and Class
A-R Certificates with respect to Loan Group 1, (b) the Class 2-A-1A
and Class 2-A-1B Certificates with respect to Loan Group 2, (c) the
Class 3-A Certificates with respect to Loan Group 3 and (3) the
Class 4-A Certificates with respect to Loan Group 4.
“ Senior Certificateholder
”: Any Holder of a Senior Certificate.
“ Senior Credit Support
Depletion Date ”: The date on which the Class
Certificate Principal Balance of each Class of Subordinate
Certificates has been reduced to zero.
“ Senior Percentage ”:
With respect to each Loan Group and any Distribution Date,
the percentage equivalent of a fraction the numerator of which is
the aggregate of the Class Certificate Principal Balance of the
Class or Classes of Senior Certificates relating to the Loan Group
immediately prior to such Distribution Date and the denominator of
which is the Stated Principal Balance of all Mortgage Loans in the
related Loan Group for such Distribution Date; provided,
however , that on any Distribution Date after a Senior
Termination Date has occurred with respect to a Loan Group, the
Senior Percentage for such Loan Group will be equal to 0%; and,
provided, further , that on any Distribution Date after a
Senior Termination Date has occurred with respect to a Loan Group,
the Senior Percentage of the remaining Senior Certificates is the
percentage equivalent of a fraction, the numerator of which is the
aggregate of the Certificate Principal Balances of the remaining
Class of Senior Certificates immediately prior to such date and the
denominator of which is the aggregate of the Certificate Principal
Balances of all Classes of Certificates, immediately prior to such
date.
“ Senior Prepayment
Percentage ”: With respect to each Loan Group and
any Distribution Date before the Distribution Date in November
2012, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Loan Group for any Distribution Date occurring
on or after the seventh anniversary of the first Distribution Date
will be as follows: (i) from November 2012 through
October 2013, the related Senior Percentage plus 70% of the related
Subordinate Percentage for that Distribution Date; (ii) from
November 2013 through October 2014, the related Senior Percentage
plus 60% of the related Subordinate Percentage for that
Distribution Date; (iii) from November 2014 through October
2015, the related Senior Percentage plus 40% of the related
Subordinate Percentage for that Distribution Date; (iv) from
November 2015 through October 2016, the related Senior Percentage
plus 20% of the related Subordinate Percentage for that
Distribution Date; and (v) from and after November 2016, the
related Senior Percentage for that Distribution Date; provided,
however, that there shall be no reduction in the Senior
Prepayment Percentage for any Loan Group unless the Step Down
Conditions are satisfied.
Notwithstanding the above, (i) if on any
Distribution Date prior to November 2008 the Two Times Test is
satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution Date
plus 50% of an amount equal to 100% minus the related Senior
Percentage for such Distribution Date and (ii) if on any
Distribution Date in or after November 2008 the Two Times Test is
satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution
Date.
However, if, on any distribution date
occurring on or after the distribution date in November 2012, the
Senior Percentage exceeds the Senior Percentage on the closing
date, the Senior Prepayment Percentage for that date will once
again equal 100%.
“ Senior Principal Distribution
Amount ”: With respect to each Loan Group and any
Distribution Date, the sum of:
(1)
the related Senior Percentage of all
amounts described in clauses (a) through (d) of the definition of
“Principal Distribution Amount” for that Distribution
Date;
(2)
with respect to each Mortgage Loan in
that Loan Group which became a Liquidated Mortgage Loan during the
related Prepayment Period, the lesser of
(x)
the related Senior Percentage of the
Stated Principal Balance of that Mortgage Loan; and
either
(y)
the related Senior Prepayment Percentage
of the amount of the Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage Loan
or
(z)
if an Excess Loss was sustained with
respect to such Liquidated Mortgage Loan during such related
Prepayment Period, the related Senior Percentage of the amount of
Net Liquidation Proceeds allocable to principal received with
respect to that Mortgage Loan; and
(3)
the related Senior Prepayment Percentage
of the amounts described in clause (f) of the definition of
“Principal Distribution Amount;”
provided , however , that if a Bankruptcy Loss that is
an Excess Loss is sustained with respect to any Mortgage Loan that
is not a Liquidated Mortgage Loan, such Senior Principal
Distribution Amount will be reduced on such Distribution Date by
the related Senior Percentage of the principal portion of such
Bankruptcy Loss.
“ Senior Termination Date
”: For either Senior Certificate Group, the
Distribution Date on which the aggregate of the Class Certificate
Principal Balances of the related Senior Certificates is reduced to
zero.
“ Servicer ”:
Provident Funding Associates L.P.
“ Servicer Certification
”: A written certification covering servicing of the
Mortgage Loans and signed by an officer of the Servicer that
complies with (i) the Sarbanes-Oxley Act of 2002, as amended from
time to time, and (ii) the February 21, 2003 Statement by the Staff
of the Division of Corporation Finance of the Securities and
Exchange Commission Regarding Compliance by Asset-Backed Issuers
with Exchange Act Rules 13a-14 and 15d-14, as in effect from time
to time; provided that if, after the Closing Date (a) the
Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred
to in clause (ii) is modified or superseded by any subsequent
statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any
future releases, rules and regulations are published by the
Securities and Exchange Commission from time to time pursuant to
the Sarbanes-Oxley Act of 2002, which in any such case affects the
form or substance of the required certification and results in the
required certification being, in the reasonable judgment of the
Servicer, materially more onerous than the form of the required
certification as of the Closing Date, the Servicer Certification
shall be as agreed to by the Servicer, Master Servicer, the
Depositor and the Sellers following a negotiation in good faith to
determine how to comply with any such new requirements.
“ Servicer Remittance Date
”: With respect to any Distribution Date, the first
Business Day preceding such Distribution Date.
“ Servicing Account ”:
Any account established and maintained by a Servicer with
respect to the related Mortgage Loans and any REO Property,
pursuant to the terms of Section 3.09 of this Agreement.
“ Servicing Advances
”: With respect to the Servicer, all customary,
reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses)
incurred by the Servicer in the performance of its servicing
obligations hereunder, including, but not limited to, the cost of
(i) the preservation, restoration, inspection and protection of the
Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of the
REO Property and (iv) compliance with the obligations under Article
III hereof.
“ Servicing Fee ”:
With respect to any Mortgage Loan and Distribution Date, the
product of (x) Servicing Fee Rate and (y) the Principal Balance of
such Mortgage Loan on the first day of the related Due
Period.
“ Servicing Fee Rate
”: With respect to each Mortgage Loan, 0.375% per
annum.
“ Servicing Officer” :
Any officer of the Servicer involved in, or
responsible for, the administration and servicing of Mortgage
Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer, to the Trustee, the
Master Servicer and the Depositor on the Closing Date, as such list
may from time to time be amended.
“ Servicing Standard
”: The standards that are set forth in Section 3.01
hereof.
“ Six-Month LIBOR ”:
The average of interbank offered rates for six-month U.S.
dollar deposits in the London market based on quotations of major
banks.
“ Six-Month LIBOR Indexed
”: Indicates a Mortgage Loan that has an adjustable Loan Rate
calculated on the basis of the Six-Month LIBOR index.
“ Special Hazard Coverage
Termination Date ”: The date on which the Special
Hazard Loss Coverage Amount is reduced to zero.
“ Special Hazard Loss
”: Any Realized Loss suffered by a Mortgaged Property,
as reported by the Servicer to the Securities Administrator, on
account of direct physical loss but not including (i) any loss of a
type covered by a hazard insurance policy or a flood insurance
policy required to be maintained with respect to such Mortgaged
Property pursuant to this Agreement to the extent of the amount of
such loss covered thereby, or (ii) any loss caused by or resulting
from:
(a)
normal wear and tear;
(b)
fraud, conversion or other dishonest act
on the part of the Trustee, a Servicer or any of their agents or
employees (without regard to any portion of the loss not covered by
any errors and omissions policy);
(c)
errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or a part
thereof ensues and then only for the ensuing loss;
(d)
nuclear or chemical reaction or nuclear
radiation or radioactive or chemical contamination, all whether
controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by the definition
of the term “Special Hazard Loss;”
(e)
hostile or warlike action in time of
peace and war, including action in hindering, combating or
defending against an actual, impending or expected
attack:
1.
by any government or sovereign power, de
jure or de facto, or by any authority maintaining or using
military, naval or air forces; or
2.
by military, naval or air forces;
or
3.
by an agent of any such government,
power, authority or forces;
(f)
any weapon of war employing nuclear
fission, fusion or other radioactive force, whether in time of
peace or war; or
(g)
insurrection, rebellion, revolution,
civil war, usurped power or action taken by governmental authority
in hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
“ Special Hazard Loss Coverage
Amount ”: With respect to the first Distribution
Date, $11,571,643. With respect to any Distribution Date
after the first Distribution Date, the lesser of (a) the
greatest of (i) 1% of the aggregate of the Principal Balances
of the Mortgage Loans, (ii) twice the Principal Balance of the
largest Mortgage Loan and (iii) the aggregate of the Principal
Balances of the Mortgage Loans secured by Mortgaged Properties
located in the single five-digit ZIP code area in the State of
California having the highest aggregate Principal Balance of any
such ZIP code area and (b) the Special Hazard Loss Coverage
Amount as of the Closing Date less the amount, if any, of Special
Hazard Losses allocated to the Certificates since the Closing Date;
provided, however, that the Special Hazard Loss Coverage
Amount may also be reduced pursuant to a letter from each Rating
Agency to the Trustee to the effect that any such reduction will
not result in the downgrading of the then current ratings assigned
by the Rating Agencies to the Classes of Senior Certificates.
All Principal Balances for the purpose of this definition
will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect
to scheduled payments on the Mortgage Loans then due, whether or
not paid.
“ Special Hazard Mortgage
Loan ”: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
“ Startup Day ”:
As defined in Section 9.01(b) hereof.
“ Stated Principal Balance
”: With respect to any Mortgage Loan: (a) as of the
Distribution Date in November 2005, the Cut-Off Date Principal
Balance of such Mortgage Loan, (b) thereafter as of any date
of determination up to and including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the outstanding principal
balance of such Mortgage Loan as of the Cut-Off Date, as shown in
the Mortgage Loan Schedule, minus , in the case of each
Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date,
whether or not received, (ii) all Principal Prepayments
received after the Cut-Off Date, to the extent distributed pursuant
to Section 5.01 and before such date of determination,
(iii) all Liquidation Proceeds and Insurance Proceeds applied
by the Servicer as recoveries of principal in accordance with this
Agreement, to the extent distributed pursuant to Section 5.01
before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation
made during or prior to the Due Period for the most recent
Distribution Date preceding such date of determination; and
(c) as of any date of determination subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed,
zero. With respect to any REO Property: (x) as of any
date of determination up to and including the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to
such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage
Loan as of the date on which such REO Property was acquired on
behalf of the Trust, minus the aggregate amount of REO Principal
Amortization in respect of such REO Property for all previously
ended calendar months, to the extent distributed pursuant to
Section 5.01 before such date of determination; and
(y) as of any date of determination subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such REO Property would be distributed,
zero.
“ Step Down Conditions
”: As of the first Distribution Date as to which any decrease
in any Senior Prepayment Percentage applies, (i) the outstanding
Principal Balance of all Mortgage Loans 60 days or more Delinquent
(including Mortgage Loans in REO and foreclosure) (averaged over
the preceding six month period), as a percentage of the aggregate
of the Class Certificate Principal Balances of the Classes of
Subordinate Certificates on such Distribution Date, does not equal
or exceed 50% and (ii) cumulative Realized Losses with respect
to all of the Mortgage Loans do not exceed:
(i)
for the Distribution Date on or after the
fifth anniversary of the first Distribution Date, 30% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date,
(ii)
for the Distribution Date on or after the
sixth anniversary of the first Distribution Date, 35% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date,
(iii)
for the Distribution Date on or after the
seventh anniversary of the first Distribution Date, 40% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date,
(iv)
for the Distribution Date on or after the
eighth anniversary of the first Distribution Date, 45% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date, and
(v)
for the Distribution Date on or after the
ninth anniversary of the first Distribution Date, 50% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date.
“ Subordinate Certificate
”: Any one of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates.
“ Subordinate Certificate
Pass-Through Rate ”: With respect to each Class of
Subordinate Certificates and any Distribution Date, the rate per
annum equal to the weighted average of the Net WACs for Loan Group
1, Loan Group 2, Loan Group 3 and Loan Group 4, weighted on the
basis of the respective Subordinate Component.
“ Subordinate Class Expense
Share ”: For each Class of Subordinate Certificates
and the Accrual Period, the Subordinate Class Expense Share shall
be allocated in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinate Certificates
with the highest numerical Class designation) and will be an amount
equal to (i) the sum of, without duplication, (a) the amounts paid
to the Trustee or the Securities Administrator from the Trust Fund
during such Accrual Period pursuant to Section 8.05 hereof to the
extent such amounts were paid for ordinary or routine expenses and
were not taken into account in computing the Net Loan Rate of any
Mortgage Loan and (b) amounts described in clause (y) of the
definition of Available Funds herein to the extent such amounts
were paid for ordinary or routine expenses and were not taken into
account in computing the Net Mortgage Rate of any Mortgage Loan
minus (ii) amounts taken into account under clause (i) of
this definition in determining the Subordinate Class Expense Share
of any Class of Subordinate Certificates having a higher numeric
designation. In no event, however, shall the Subordinate
Class Expense Share for any Class of Subordinate Certificates and
any Accrual Period exceed the product of (i) (a) Net WAC divided by
(b) 12 and (ii) the Class Certificate Principal Amount of such
Class of Subordinate Certificates as of the beginning of the
related Accrual Period.
“ Subordinate Component
”: With respect to each Loan Group and any Distribution
Date, the excess of the related Loan Group Balance for such
Distribution Date over the aggregate Class Certificate Principal
Balance of the related Senior Certificate Group immediately
preceding such Distribution Date. The designation
“1,” “2,” “3” or
“4” appearing after the corresponding Loan Group
designation is used to indicate a Subordinate Component allocable
to Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group 4,
respectively
“ Subordinate Percentage
”: With respect to any Distribution Date and Loan
Group, the difference between 100% and the related Senior
Percentage for such Distribution Date and Loan Group; provided,
however , that on any Distribution Date occurring after a
Senior Termination Date with respect to a Senior Certificate Group,
the Subordinate Percentage will represent the entire interest of
the Subordinate Certificates in the Mortgage Loans and will equal
the difference between 100% and the Senior Percentage for such
Distribution Date.
“ Subordinate Prepayment
Percentage ”: With respect to any Distribution
Date, the difference between 100% and the Senior Prepayment
Percentage for such Distribution Date.
“ Subordinate Principal
Distribution Amount ”: With respect to each Loan
Group and any Distribution Date, an amount equal to the sum of for
all Loan Groups:
(1)
the related Subordinate Percentage
of all amounts described in clauses (a) through (d) of the
definition of “Principal Distribution Amount” for that
Loan Group and Distribution Date;
(2)
with respect to each Mortgage Loan in
such Loan Group that became a Liquidated Mortgage Loan during the
related Prepayment Period, the amount of the Net Liquidation
Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the
definition of “Senior Principal Distribution Amount”
for that Loan Group and Distribution Date, up to the related
Subordinate Percentage of the Stated Principal Balance of such
Mortgage Loan; and
(3)
the related Subordinated Prepayment
Percentage of all amounts described in clause (f) of the definition
of “Principal Distribution Amount” for such Loan Group
and Distribution Date;
provided , however , that if a Bankruptcy Loss that is
an Excess Loss is sustained with respect to any Mortgage Loan that
is not a Liquidated Mortgage Loan, the related Subordinate
Principal Distribution Amount will be reduced on the related
Distribution Date by the Subordinate Percentage of the principal
portion of such Bankruptcy Loss and provided, further, that
on any Distribution Date occurring after a Senior Termination Date
has occurred with respect to a Senior Certificate Group, the
Subordinate Principal Distribution Amount will not be calculated by
Loan Group but will equal the amount calculated pursuant to the
formula set forth above based on the Subordinate Percentage or
Subordinate Prepayment Percentage, as applicable, for such
Distribution Date with respect to all the Mortgage Loans rather
than the Mortgage Loans in the related Loan Group only.
“ Substitution Adjustment
”: As defined in Section 2.03(d) hereof.
“ Tax Returns ”:
The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of the REMIC Taxable Income or Net Loss
Allocation, or any successor forms, to be filed on behalf of each
REMIC created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be
required to be furnished to the Certificateholders or filed with
the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or
local tax laws.
“ Termination Price ”:
As defined in Section 11.01(a) hereof.
“ Transfer ”:
Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
“ Transfer Affidavit
”: As defined in Section 6.02(e)(ii) hereof.
“ Transferee ”:
Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
“ Trust ”:
Provident Funding Mortgage Loan Trust 2005-2, the trust
created hereunder.
“ Trust Fund ”:
The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, such Trust
Fund consisting of: (i) such Mortgage Loans as from time to time
are subject to this Agreement, together with the Mortgage Files
relating thereto, and together with all collections thereon and
proceeds thereof, (ii) any REO Property, together with all
collections thereon and proceeds thereof, (iii) the Trustee’s
rights with respect to the Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and
any proceeds thereof, (iv) the Depositor’s rights under the
Mortgage Loan Purchase Agreement (including any security interest
created thereby), (v) the Distribution Account (subject to the last
sentence of this definition), any REO Account and such assets that
are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments
with respect thereto and (vi) all proceeds of the foregoing.
Notwithstanding the foregoing, however, the Trust Fund
specifically excludes all payments and other collections of
interest and principal due on the Mortgage Loans on or before the
Cut-Off Date and principal received before the Cut-Off Date (except
any principal collected as part of a payment due after the Cut-Off
Date).
“ Trustee ”:
Deutsche Bank National Trust Company, a national banking
association, its successors and assigns, or any successor trustee
appointed as provided herein.
“ Two Times Test ”:
As to any Distribution Date, (i) the Aggregate Subordinate
Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the
Principal Balances of all Mortgage Loans Delinquent 60 days or more
(including Mortgage Loans in REO and foreclosure) (averaged over
the preceding six-month period), as a percentage of the aggregate
of the Class Certificate Principal Balances of the Subordinate
Certificates, does not equal or exceed 50%; and (iii) on or after
the Distribution Date in November 2008, cumulative Realized Losses
do not exceed 30% of the Original Subordinated Principal Balance or
prior to the Distribution Date in November 2008, cumulative
Realized Losses do not exceed 20% of the Original Subordinated
Principal Balance.
“ Undercollateralized Group
”: With respect to any Distribution Date and Loan
Group, as to which the aggregate Class Certificate Principal
Balance of the related classes of Senior Certificates, after giving
effect to distributions pursuant to Section 5.01(a) on such date,
is greater than the Loan Group Balance of the related Loan Group
for such Distribution Date.
“ Underwriter’s
Exemption ”: Prohibited Transaction Exemption 90-59
(Exemption Application No. D-8374), as amended by Prohibited
Transaction Exemption 97-34 (Exemption Application Nos. D-10245 and
D-10246), as amended by Prohibited Transaction Exemption 2000-58
(Exemption Application No. D-10829) and as amended by Prohibited
Transaction Exemption 2002-41 (Exemption Application No. D-11077)
(or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of
Labor.
“ Uninsured Cause ”:
Any cause of damage to a Mortgaged Property such that the
complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained on such
Mortgaged Property.
“ United States Person
” or “ U.S. Person ”: A
“United States person” within the meaning set forth in
Section 7701(a)(30) of the Code or successor
provisions.
“ Unpaid Interest Shortfall
Amount ”: With respect to each Class of
Certificates and (i) the first Distribution Date, zero, and
(ii) any Distribution Date after the first Distribution Date, the
amount, if any, by which (1)(a) the Monthly Interest Distributable
Amount for that Class for the immediately preceding Distribution
Date exceeds (b) the aggregate amount distributed on that Class in
respect of such Monthly Interest Distributable Amount on the
preceding Distribution Date plus (2) any such shortfalls remaining
unpaid from prior Distribution Dates.
“Upper Tier Interest
”: As described in the
Preliminary Statement.
“Upper Tier REMIC
”: As described in the
Preliminary Statement.
“ Value ”: With
respect to any Mortgage Loan and the related Mortgaged Property,
the lesser of:
(i)
the value of such Mortgaged Property as
determined by an appraisal made for the originator of the Mortgage
Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Fannie Mae and
Freddie Mac; and
(ii)
the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan;
provided, however
, that in the case of a Refinancing
Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an
appraiser who met the minimum requirements of Fannie Mae and
Freddie Mac.
“ Voting Rights ”:
The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. 99% of the voting
rights shall be allocated among the Classes of Regular
Certificates, pro rata , based on a fraction, expressed as a
percentage, the numerator of which is the Class Certificate
Principal Balance of such Class and the denominator of which is the
aggregate of the Class Certificate Principal Balances then
outstanding and 1% of the voting rights shall be allocated to the
Class A-R Certificate; provided, however , that when none of
the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate.
The voting rights allocated to a Class of Certificates shall
be allocated among all Holders of such Class, pro rata ,
based on a fraction the numerator of which is the Certificate
Principal Balance of each Certificate of such Class and the
denominator of which is the Class Certificate Principal Balance of
such Class; provided, however , that any Certificate
registered in the name of the Trustee or any of its affiliates
shall not be included in the calculation of Voting
Rights.
“ Writedown Amount ”:
The reduction described in Section 5.03(c).
SECTION 1.02. Accounting
.
Unless otherwise specified herein, for
the purpose of any definition or calculation, whenever amounts are
required to be netted, subtracted or added or any distributions are
taken into account such definition or calculation and any related
definitions or calculations shall be determined without duplication
of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of
Mortgage Loans .
The Depositor, concurrently with the
execution and delivery hereof, does hereby transfer, assign, set
over and otherwise convey to the Trustee without recourse for the
benefit of the Certificateholders all the right, title and interest
of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan
identified on the Mortgage Loan Schedule, including the related
Cut-Off Date Principal Balance, all interest due thereon after the
Cut-Off Date and all collections in respect of interest and
principal due after the Cut-Off Date; (ii) all the
Depositor’s right, title and interest in and to the
Distribution Account and all amounts from time to time credited to
and the proceeds of the Distribution Account; (iii) any real
property that secured each such Mortgage Loan and that has been
acquired by foreclosure or deed in lieu of foreclosure; (iv) the
Depositor’s interest in any insurance policies in respect of
the Mortgage Loans; (v) all proceeds of any of the foregoing; and
(vi) all other assets included or to be included in the Trust Fund.
Such assignment includes all interest and principal due to
the Depositor or the Servicer after the Cut-Off Date with respect
to the Mortgage Loans. In exchange for such transfer and
assignment, the Depositor shall receive the
Certificates.
Concurrently with the execution and
delivery of this Agreement, the Depositor does hereby assign to the
Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement. The Trustee hereby accepts such
assignment, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Purchase Agreement. The
foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, each
Seller or any other Person in connection with the Mortgage Loans or
any other agreement or instrument relating thereto except as
specifically set forth herein.
In connection with such transfer and
assignment, each Seller, on behalf of the Depositor, does hereby
deliver on the Closing Date, unless otherwise specified in this
Section 2.01, to, and deposit with the Trustee, or the Custodian as
its designated agent, the following documents or instruments with
respect to each Mortgage Loan (a “ Mortgage File
”) so transferred and assigned:
(i)
the original Mortgage Note, endorsed
either on its face or by allonge attached thereto in blank or in
the following form: “Pay to the order of Deutsche Bank
National Trust Company, as Trustee for Provident Funding Mortgage
Loan Trust 2005-2, Mortgage Pass-Through Certificates, Series
2005-2, without recourse”, or with respect to any lost
Mortgage Note, an original Lost Note Affidavit stating that the
original mortgage note was lost, misplaced or destroyed, together
with a copy of the related mortgage note; provided, however, that
such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off Date Principal Balance of which is less than or equal to 2%
of the Cut-Off Date Aggregate Principal Balance;
(ii)
except as provided below, for each
Mortgage Loan that is not a MERS Mortgage Loan, the original
Mortgage, and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN for that Mortgage Loan and
either language indicating that the Mortgage Loan is a MOM Loan if
the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a
MOM Loan at origination, the original Mortgage and the assignment
to MERS, in each case with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon
or, if such Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
together with an Officer’s Certificate of such Seller
certifying that the copy of such Mortgage delivered to the Trustee
(or its Custodian) is a true copy and that the original of such
Mortgage has been forwarded to the public recording office, or, in
the case of a Mortgage that has been lost, a copy thereof
(certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel (delivered at such
Seller’s expense) acceptable to the Trustee and the Depositor
that an original recorded Mortgage is not required to enforce the
Trustee’s interest in the Mortgage Loan;
(iii)
the original of each assumption,
modification or substitution agreement, if any, relating to the
Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the
Closing Date because of a delay caused by the public recording
office where such assumption, modification or substitution
agreement has been delivered for recordation, a photocopy of such
assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an officer’s
certificate of the Seller, title company, escrow agent or closing
attorney certifying that the copy of such assumption, modification
or substitution agreement delivered to the Trustee (or its
Custodian) on behalf of the Trust is a true copy and that the
original of such agreement has been forwarded to the public
recording office;
(iv)
in the case of each Mortgage Loan that is
not a MERS Mortgage Loan, an original Assignment of Mortgage, in
form and substance acceptable for recording. The Mortgage
shall be assigned to “Deutsche Bank National Trust Company,
as Trustee for Provident Funding Mortgage Loan Trust 2005-2,
Mortgage Pass-Through Certificates, Series 2005-2, without
recourse”;
(v)
in the case of each Mortgage Loan that is
not a MERS Mortgage Loan, an original copy of any intervening
Assignment of Mortgage showing a complete chain of assignments, or,
in the case of an intervening Assignment of Mortgage that has been
lost, a written Opinion of Counsel (delivered at the Seller’s
expense) acceptable to the Trustee that such original intervening
Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage Loans;
(vi)
the original Primary Insurance Policy, if
any, or certificate, if any; and
(vii)
the original or a certified copy (which
copy may be electronic with a separate certification) of
lender’s title insurance policy.
In connection with the assignment of any
MERS Mortgage Loan, each Seller agrees that it will take (or shall
cause the Servicer to take), at the expense of such Seller (with
the cooperation of the Depositor, the Servicer and the Trustee),
such actions as are necessary to cause the MERS® System to
indicate that such Mortgage Loans have been assigned by such Seller
to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of
Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the
MERS® System to identify the series of the Certificates issued
in connection with the transfer of such Mortgage Loans to the
Provident Funding Mortgage Loan Trust 2005-2.
Each Seller shall cause Assignments of
Mortgage with respect to each Mortgage Loan conveyed by such Seller
that is not a MERS Mortgage Loan to be recorded at the cost and
expense of such Seller; provided, however , that such
assignments need not be recorded if, in the Opinion of Counsel
(which must be from Independent Counsel and not at the expense of
the Trust, the Trustee or the Master Servicer) acceptable to the
Trustee, the Rating Agencies, the Servicer and the Master Servicer,
recording in such states is not required to protect the
Trustee’s interest in the related Mortgage Loans;
provided, further , notwithstanding the delivery of any
Opinion of Counsel, each assignment of Mortgage shall be submitted
for recording by such Seller (or such Seller will cause the
Servicer to submit each such assignment for recording), at the cost
and expense of such Seller, in the manner described above, at no
expense to the Trust or Trustee, upon the earliest to occur of (1)
reasonable direction by the Majority Certificateholders, (2) the
occurrence of a bankruptcy or insolvency relating to such Seller or
the Depositor, or (3) with respect to any one Assignment of
Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject
to the preceding sentence, as soon as practicable after the Closing
Date (but in no event more than three months thereafter except to
the extent delays are caused by the applicable recording office),
each Seller shall properly record (or such Seller will cause the
Servicer to properly record), at the expense of such Seller (with
the cooperation of the Depositor, the Master Servicer, the Servicer
and the Trustee), in each public recording office where the related
Mortgages are recorded, each assignment referred to in Section
2.01(v) above with respect to a Mortgage Loan that is not a MERS
Mortgage Loan.
The Trustee agrees to execute and deliver
to the Depositor on or prior to the Closing Date an acknowledgment
of receipt of the original Mortgage Note (with any exceptions
noted), substantially in the form attached as Exhibit G-1
hereto.
If the original lender’s title
insurance policy, or a certified copy thereof, was not delivered
pursuant to Section 2.01(x) above, such Seller shall deliver or
cause to be delivered to the Trustee the original or a copy of a
written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company, with the original
or a certified copy thereof to be delivered to the Trustee,
promptly upon receipt thereof, but in any case within 90 days of
the Closing Date. Each Seller shall deliver or cause to be
delivered to the Trustee, promptly upon receipt thereof, any other
documents constituting a part of a Mortgage File received with
respect to any Mortgage Loan sold to the Depositor by such Seller,
including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
For Mortgage Loans (if any) that have
been prepaid in full after the Cut-off Date and prior to the
Closing Date, such Seller, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the Custodian on
behalf of the Trustee, no later than 2 Business Days after the
Closing Date, an Officer’s Certificate which shall include a
statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the
Distribution Account have been so deposited. All original
documents that are not delivered to the Trustee on behalf of the
Trust shall be held by the Servicer in trust for the Trustee, for
the benefit of the Trust and the Certificateholders.
Upon discovery or receipt of notice of
any materially defective document in, or that a document is missing
from, a Mortgage File, a Seller shall have 90 days to cure such
defect or deliver such missing document to the Trustee. If
such Seller does not cure such defect or deliver such missing
document within such time period, such Seller shall either
repurchase or substitute for such Mortgage Loan in accordance with
Section 2.03 hereof.
The Depositor herewith delivers to the
Trustee an executed copy of the Mortgage Loan Purchase
Agreement.
SECTION 2.02. Acceptance by
Trustee .
The Trustee hereby accepts its
appointment as Custodian hereunder and acknowledges the receipt,
subject to the provisions of Section 2.01 and subject to the review
described below and any exceptions noted on the exception report
described in the next paragraph below, of the documents referred to
in Section 2.01 above and all other assets included in the
definition of “Trust Fund” and declares that, in its
capacity as Custodian, it holds and will hold such documents and
the other documents delivered to it constituting a Mortgage File,
and that it holds or will hold all such assets and such other
assets included in the definition of “Trust Fund” in
trust for the exclusive use and benefit of all present and future
Certificateholders.
The Trustee further agrees, for the
benefit of the Certificateholders, to review each Mortgage File
delivered to it and to certify and deliver to the Depositor, the
Seller and the Rating Agencies an interim certification in
substantially the form attached hereto as Exhibit G-2, within 90
days after the Closing Date (or, with respect to any document
delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within five Business
Days after the assignment thereof) that, 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 required to be delivered to
it pursuant to Section 2.01 of this Agreement are in its
possession, (ii) such documents have been reviewed by it and
have not been mutilated, damaged or torn and relate to such
Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (i) and (ii) of the Mortgage
Loan Schedule accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting
such review, the Trustee is under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or
other papers to determine that they are genuine, enforceable, or
appropriate for the represented purpose or that they have actually
been recorded or that they are other than what they purport to be
on their face.
No later than 180 days after the Closing
Date, the Trustee shall deliver to the Depositor and the Seller a
final certification in the form annexed hereto as Exhibit G-3
evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
If, in the process of reviewing the
Mortgage Files and making or preparing, as the case may be, the
certifications referred to above, the Trustee finds any document or
documents constituting a part of a Mortgage File to be missing or
defective in any material respect, at the conclusion of its review
the Trustee (or the Custodian as its designated agent) shall
promptly notify the Sellers, the Master Servicer, the Servicer and
the Depositor. In addition, upon the discovery by a Seller or
the Depositor (or upon receipt by the Trustee of written
notification of such breach) of a breach of any of the
representations and warranties made by such Seller in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan that
materially adversely affects such Mortgage Loan or the interests of
the related Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the
other parties to this Agreement.
The Depositor and the Trustee intend that
the assignment and transfer herein contemplated constitute a sale
of the Mortgage Loans, the related Mortgage Notes and the related
documents, conveying good title thereto free and clear of any liens
and encumbrances, from the Depositor to the Trustee and that such
property not be part of the Depositor’s estate or property of
the Depositor in the event of any insolvency by the Depositor.
In the event that such conveyance is deemed to be, or to be
made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the
Trustee a first priority perfected security interest in all of the
Depositor’s right, title and interest in and to the Mortgage
Loans, the related Mortgage Notes and the related documents, and
that this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.03. Repurchase or
Substitution of Mortgage Loans by the Sellers .
(a)
Upon discovery or receipt of written
notice of any materially defective document in, or that a document
is missing from, a Mortgage File or of the breach by a Seller of
any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement or in Section 2.04 or Section 2.08 hereof
in respect of any Mortgage Loan which materially adversely affects
the value of that Mortgage Loan or the interest therein of the
Certificateholders, the Trustee (or the Custodian as its designated
agent) shall promptly notify such Seller of such defect, missing
document or breach and request that such Seller deliver such
missing document or cure such defect or breach within 90 days from
the date that such Seller was notified of such missing document,
defect or breach, and if such Seller does not deliver such missing
document or cure such defect or breach in all material respects
during such period, the Trustee shall enforce such Seller’s
obligation under the Mortgage Loan Purchase Agreement and cause the
Seller to repurchase that Mortgage Loan from the Trust Fund at the
Purchase Price on or prior to the Determination Date following the
expiration of such 90 day period (subject to Section 2.03(e)
below); provided, however, that, in connection with any such breach
that could not reasonably have been cured within such 90 day
period, if such Seller shall have commenced to cure such breach
within such 90 day period, such Seller shall be permitted to
proceed thereafter diligently and expeditiously to cure the same
within the additional period provided under the Mortgage Loan
Purchase Agreement; and, provided further, that, in the case of the
breach of any representation, warranty or covenant made by (i) PFA
in the Mortgage Loan Purchase Agreement with respect to the
Mortgage Loans in Loan Group 1 and Loan Group 2 or (ii) PAM in the
Mortgage Loan Purchase Agreement with respect to the Mortgage Loans
in Loan Group 3 and Loan Group 4, which representations, warranties
and covenants are also attached hereto as Schedule II, PFA or PAM,
as applicable, shall be obligated to cure such breach or purchase
the affected Mortgage Loans for the Purchase Price or, if the
Mortgage Loan or the related Mortgaged Property acquired with
respect thereto has been sold, then PFA or PAM, as applicable,
shall pay, in lieu of the Purchase Price, any excess of the
Purchase Price over the Net Liquidation Proceeds received upon such
sale. The Purchase Price for the repurchased Mortgage Loan or
such other amount due shall be deposited in the Distribution
Account on or prior to the next Determination Date after such
Seller’s obligation to repurchase such Mortgage Loan arises.
The Securities Administrator shall remit to the parties
entitled thereto the portions of the Purchase Price, if any
specified in clause (iv) and (v) of the definition thereof.
The Trustee, upon receipt of written certification from the
Securities Administrator of the related deposit in the Distribution
Account, shall release to such Seller the related Mortgage File and
shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as such Seller shall
furnish to it and as shall be necessary to vest in such Seller any
Mortgage Loan released pursuant hereto and the Trustee shall have
no further responsibility with regard to such Mortgage File (it
being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended
purpose). In lieu of repurchasing any such Mortgage Loan as
provided above, such Seller may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a
Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d) below. It is
understood and agreed that the obligation of such Seller to cure or
to repurchase (or to substitute for) any Mortgage Loan as to which
a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy against such Seller respecting
such omission, defect or breach available to the Trustee on behalf
of the Certificateholders.
The Trustee shall enforce the obligations
of each Seller under the Mortgage Loan Purchase Agreement
including, without limitation, any obligation of such Seller to
purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation,
warranty or covenant as described in this Section
2.03(a).
(b)
If pursuant to the provisions of Section
2.03(a), a Seller repurchases or otherwise removes from the Trust
Fund a Mortgage Loan that is a MERS Mortgage Loan, such Seller
shall take (or shall cause the Servicer to take), at the expense of
such Seller (with the cooperation of the Depositor and the
Trustee), such actions as are necessary either (i) cause MERS to
execute and deliver an Assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to such Seller and shall cause such
Mortgage to be removed from registration on the MERS® System
in accordance with MERS’ rules and regulations or (ii) cause
MERS to designate on the MERS® System such Seller or its
designee as the beneficial holder of such Mortgage Loan.
(c)
[Reserved].
(d)
Any substitution of Qualified Substitute
Mortgage Loans for Deleted Mortgage Loans made pursuant to Section
2.03(a) above must be effected prior to the last Business Day that
is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which a Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by such
Seller delivering to the Custodian, on behalf of the Trustee, for
such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note, the Mortgage, the Assignment to the Trustee, and such other
documents and agreements, with all necessary endorsements thereon,
as are required by Section 2.01 hereof, together with an
Officers’ Certificate stating that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and
specifying the Substitution Adjustment (as described below), if
any, in connection with such substitution; provided, however, that,
in the case of any Qualified Substitute Mortgage Loan that is a
MERS Mortgage Loan, such Seller shall provide such documents and
take such other action with respect to such Qualified Substitute
Mortgage Loans as are required pursuant to Section 2.01 hereof.
The Custodian, on behalf of the Trustee, shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and,
within five Business Days thereafter, shall review such documents
as specified in Section 2.02 hereof and deliver to the Servicer,
with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit
G-2, with any exceptions noted thereon. Within 180 days of
the date of substitution, the Custodian, on behalf of the Trustee,
shall deliver to each Seller and the Master Servicer a
certification substantially in the form of Exhibit G-3 hereto with
respect to such Qualified Substitute Mortgage Loan or Loans, with
any exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of
substitution are not part of the Trust Fund and will be retained by
the Seller. For the month of substitution, distributions to
Certificateholders will reflect the collections and recoveries in
respect of such Deleted Mortgage Loan in the Due Period preceding
the month of substitution and the Depositor or the related Seller,
as the case may be, shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage
Loan. The related Seller shall give or cause to be given
written notice to the Certificateholders that such substitution has
taken place, shall amend the Mortgage Loan Schedule to reflect the
removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage
Loan or Loans and shall deliver a copy of such amended Mortgage
Loan Schedule to the Trustee. Upon such substitution, such
Qualified Substitute Mortgage Loan or Loans shall constitute part
of the Trust Fund and shall be subject in all respects to the terms
of this Agreement and, in the case of a substitution effected by a
Seller, the Mortgage Loan Purchase Agreement, including, in the
case of a substitution effected by such Seller all representations
and warranties thereof included in the Mortgage Loan Purchase
Agreement and all representations and warranties thereof set forth
in Section 2.04 hereof, in each case as of the date of
substitution.
For any month in which a Seller
substitutes one or more Qualified Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, such Seller shall determine, and
provide written certification to the Trustee and the Master
Servicer as to the amount (each, a “ Substitution
Adjustment ”), if any, by which the aggregate Principal
Balance of all such Deleted Mortgage Loans exceeds the aggregate,
as to each such Qualified Substitute Mortgage Loan, of the
principal balance thereof as of the date of substitution, together
with one month’s interest on such principal balance at the
applicable Net Loan Rate. On or prior to the next
Determination Date after a Seller’s obligation to repurchase
the related Deleted Mortgage Loan arises, such Seller will deliver
or cause to be delivered to the Master Servicer for deposit in the
Distribution Account an amount equal to the related Substitution
Adjustment, if any, and the Custodian, on behalf of the Trustee,
upon receipt of the related Qualified Substitute Mortgage Loan or
Loans, shall release to such Seller the related Mortgage File or
Files and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as such Seller shall
deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In addition, the related Seller shall
obtain at its own expense and deliver to the Trustee and the
Securities Administrator an Opinion of Counsel to the effect that
such substitution (either specifically or as a class of
transactions) will not cause an Adverse REMIC Event. If such
Opinion of Counsel cannot be delivered, then such substitution may
only be effected at such time as the required Opinion of Counsel
can be given.
(e)
Upon discovery by a Seller, the Depositor
or the Trustee that any Mortgage Loan does not constitute a
“qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall
within two Business Days give written notice thereof to the other
parties. In connection therewith, the related Seller shall
repurchase or, subject to the limitations set forth in Section
2.03(d), substitute one or more Qualified Substitute Mortgage Loans
for the affected Mortgage Loan within 90 days of the earlier of
discovery or receipt of such notice with respect to such affected
Mortgage Loan. Any such repurchase or substitution shall be
made in the same manner as set forth in Section 2.03(a) above, if
made by the Seller. The Trustee shall reconvey to such Seller
the Mortgage Loan to be released pursuant hereto in the same
manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or
warranty.
SECTION 2.04. Representations
and Warranties of the Sellers with Respect to the Mortgage
Loans .
PFA hereby represents and warrants to the
Trustee on behalf of the Certificateholders that the
representations and warranties made by PFA with respect to the
Mortgage Loans in Loan Group 1 and Loan Group 2, attached as
Schedule II to this Agreement, are hereby being made to the Trustee
and are true and correct as of the Closing Date. PAM hereby
represents and warrants to the Trustee on behalf of the
Certificateholders that the representations and warranties made by
PAM with respect to the Mortgage Loans in Loan Group 3 and Loan
Group 4, attached as Schedule II to this Agreement, are hereby
being made to the Trustee and are true and correct as of the
Closing Date.
With respect to the representations and
warranties incorporated in this Section 2.04 that are made to the
best of a Seller’s knowledge or as to which such Seller has
no knowledge, if it is discovered by the Depositor, a Seller or the
Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the
value of the related Mortgage Loan or the interest therein of the
Certificateholders then, notwithstanding such Seller’s lack
of knowledge with respect to the substance of such representation
and warranty being inaccurate at the time the representation or
warranty was made, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
Within 90 days of its discovery or its
receipt of notice of any such missing or materially defective
documentation or any such breach of a representation or warranty,
the related Seller shall promptly deliver such missing document or
cure such defect or breach in all material respects or, in the
event such defect or breach cannot be cured, such Seller shall
repurchase the affected Mortgage Loan or cause the removal of such
Mortgage Loan from the Trust Fund and substitute for it one or more
Qualified Substitute Mortgage Loans, in either case, in accordance
with Section 2.03 hereof.
It is understood and agreed that the
representations and warranties incorporated in this Section 2.04
shall survive delivery of the Mortgage Files to the Trustee and
shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or
assignment. Upon discovery by any of the Depositor, a Seller
or the Trustee of a breach of any of the foregoing representations
and warranties which materially and adversely affects the value of
any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give
prompt written notice to the other parties, and in no event later
than two Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Seller set forth
in Section 2.03(a) hereof to cure, substitute for or repurchase a
related Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a
breach of the representations and warranties incorporated in this
Section 2.04.
SECTION 2.05. Representations,
Warranties and Covenants of the Servicer .
The Servicer hereby represents, warrants
and covenants to the Trustee, for the benefit of each of the
Trustee, the Certificateholders and to the Depositor and the Master
Servicer that as of the Closing Date or as of such date
specifically provided herein:
(i)
The Servicer is duly organized, validly
existing, and in good standing under the laws of the jurisdiction
of its formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in
good standing or is exempt from such licensure, qualification or
requirement of good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
the Servicer or is a condition to the enforceability or validity of
each Mortgage Loan; the Servicer has the power and authority to
execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to
this Agreement) by the Servicer and the consummation of the
transactions contemplated hereby have been duly and validly
authorized; this Agreement constitutes the valid, binding and
enforceable obligation of the Servicer, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights
generally; and all requisite action called for by the
Servicer’s limited partnership agreement has been taken by
the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms;
(ii)
The consummation of the transactions
contemplated by this Agreement are in the ordinary course of
business of the Servicer and will not result in the breach of any
term or provision of the Servicer’s limited partnership
agreement or result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the
acceleration of any obligation under, any agreement, indenture or
loan or credit agreement or other instrument to which the Servicer
or its property is subject, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Servicer
or its property is subject;
(iii)
The execution and delivery of this
Agreement by the Servicer and the performance and compliance with
its obligations and covenants hereunder do not require the consent
or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv)
This Agreement, and all documents and
instruments contemplated hereby which are executed and delivered by
the Servicer, constitute and will constitute valid, legal and
binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights generally, or the rights of creditors of
federally insured financial institutions, and general principles of
equity;
(v)
The Servicer is a servicer approved by
Fannie Mae and Freddie Mac;
(vi)
The Servicer does not believe, nor does
it have any reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement;
(vii)
There is no action, suit, proceeding or
investigation pending or, to its knowledge, threatened against the
Servicer that, either individually or in the aggregate, (A) could
reasonably be expected to prohibit or materially and adversely
affect the performance by the Servicer of its obligations under, or
validity or enforceability of, this Agreement, or (B) could
reasonably be expected to result in any material impairment of the
right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) could reasonably be expected
to result in any material liability on the part of the Servicer, or
(D) would draw into question the validity or enforceability of this
Agreement or of any action taken or to be taken in connection with
the obligations of the Servicer contemplated herein, or (E) would
otherwise be likely to impair materially the ability of the
Servicer to perform under the terms of this Agreement;
and
(viii)
Neither this Agreement nor any
information, certificate of an officer, statement furnished in
writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains any
untrue statement of a material fact.
It is understood and agreed that the
representations, warranties and covenants set forth in this Section
2.05 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Trustee, the Depositor and
the Certificateholders. Upon discovery by any of the
Depositor, the Servicer, a Seller or the Trustee of a breach of any
of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan or
the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no
event later than two Business Days following such discovery) to the
Depositor, the Servicer, the Seller and the Trustee and the
Servicer shall cure any breach within 60 days of notice
thereof.
SECTION 2.06. Representations
and Warranties of the Depositor .
The Depositor represents and warrants to
the Servicer, Master Servicer, the Securities Administrator and the
Trustee on behalf of the Certificateholders and to as
follows:
(i)
this agreement constitutes a legal, valid
and binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors’ rights in
general an except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or
in equity);
(ii)
immediately prior to the sale and
assignment by the Depositor to the Trustee on behalf of the Trust
of each Mortgage Loan, the Depositor had good and marketable title
to each Mortgage Loan (insofar as such title was conveyed to it by
the Seller) subject to no prior lien, claim, participation
interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature;
(iii)
as of the Closing Date, the Depositor has
transferred all right, title and interest in the Mortgage Loans to
the Trustee on behalf of the Trust;
(iv)
the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any
intent to hinder, delay or defraud any of its creditors;
(v)
the Depositor has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of Delaware, with full corporate power and authority to own
its assets and conduct its business as presently being
conducted;
(vi)
the Depositor is not in violation of its
certificate of incorporation or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse changes
in the financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the
Depositor;
(vii)
the execution, delivery and performance
of this Agreement by the Depositor, and the consummation of the
transactions contemplated hereby, do not and will not result in a
material breach or violation of any of the terms or provisions of,
or, to the knowledge of the Depositor, constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions result in
any violation of the provisions of the certificate of incorporation
or by-laws of the Depositor or, to the best of the
Depositor’s knowledge without independent investigation, any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor
or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material
adverse effect on the ability of the Depositor to perform its
obligations under this Agreement);
(viii)
to the best of the Depositor’s
knowledge without any independent investigation, no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States
or any other jurisdiction is required for the issuance of the
Certificates, or the consummation by the Depositor of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a)
may be required under State securities or “blue sky”
laws, (b) have been previously obtained or (c) the failure of which
to obtain would not have a material adverse effect on the
performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement; and
(ix)
there are no actions, proceedings or
investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its
properties is the subject: (a) which if determined adversely to the
Depositor would have a material adverse effect on the business,
results of operations or financial condition of the Depositor; (b)
asserting the invalidity of this Agreement or the Certificates; (c)
seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions
contemplated by this Agreement, as the case may be; or (d) which
might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 2.07. Issuance of
Certificates .
The Trustee acknowledges the assignment
to it of the Mortgage Loans and the delivery to it of the Mortgage
Files, subject to the provisions of Sections 2.01 and 2.02
hereof, together with the assignment to it of all other assets
included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery
and in exchange therefor, the Securities Administrator, pursuant to
the written request of the Depositor executed by an officer of the
Depositor, has caused to be executed, authenticated and delivered
to or upon the order of the Depositor, the Certificates in
authorized denominations. The interests evidenced by the
Certificates constitute the entire beneficial ownership interest in
the Trust Fund.
SECTION 2.08. Representations
and Warranties of the Sellers .
Each Seller hereby represents and
warrants with respect to itself, to the Trustee on behalf of the
Certificateholders and to the Master Servicer that, as of the
Closing Date or as of such date specifically provided
herein:
(i)
The Seller is duly organized, validly
existing and in good standing and has the power and authority to
own its assets and to transact the business in which it is
currently engaged. The Seller is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure
to so qualify would have a material adverse effect on (a) its
business, properties, assets or condition (financial or other), (b)
the performance of its obligations under this Agreement, or
(c) the value or marketability of the Mortgage
Loans.
(ii)
The Seller has the power and authority to
make, execute, deliver and perform this Agreement and to consummate
all of the transactions contemplated hereunder and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official
records. When executed and delivered, this Agreement will
constitute the Seller’s legal, valid and binding obligations
enforceable in accordance with its terms, except as enforcement of
such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and the rights
of creditors of federally insured financial institutions and by the
availability of equitable remedies, (2) general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (3) public policy considerations
underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from securities
laws liabilities.
(iii)
The Seller holds all necessary licenses,
certificates and permits from all governmental authorities
necessary for conducting its business as it is currently conducted.
It is not required to obtain the consent of any other party
or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except
for such consents, licenses, approvals or authorizations, or
registrations or declarations as shall have been obtained or filed,
as the case may be, prior to the Closing Date.
(iv)
The execution, delivery and performance
of this Agreement by the Seller will not conflict with or result in
a breach of, or constitute a default under, any provision of any
existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision
of its limited partnership agreement, or constitute a material
breach of, or result in the creation or imposition of any lien,
charge or encumbrance upon any of its properties pursuant to any
mortgage, indenture, contract or other agreement to which it is a
party or by which it may be bound.
(v)
No certificate of an officer, written
statement or written report delivered pursuant to the terms hereof
of the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement or report not misleading.
(vi)
The transactions contemplated by this
Agreement are in the ordinary course of the Seller’s
business.
(vii)
The Seller is not insolvent, nor will the
Seller be made insolvent by the transfer of the Mortgage Loans to
the Depositor, nor is the Seller aware of any pending insolvency of
the Seller.
(viii)
The Seller is not in violation of, and
the execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of
any court, or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which
violation would materially and adversely affect the Seller’s
financial condition (financial or otherwise) or operations, or
materially and adversely affect the performance of any of its
duties hereunder.
(ix)
There are no actions or proceedings
against the Seller, or pending or, to its knowledge, threatened,
before any court, administrative agency or other tribunal; nor, to
the Seller’s knowledge, are there any investigations (i)
that, if determined adversely, would prohibit the Seller from
entering into this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to
perform any of its respective obligations under, or the validity or
enforceability of, this Agreement.
(x)
The Seller did not transfer the Mortgage
Loans sold by it to the Depositor with any intent to hinder, delay
or defraud any of its creditors.
(xi)
The Seller acquired title to the Mortgage
Loans sold by it in good faith, without notice of any adverse
claims.
(xii)
The transfer, assignment and conveyance
of the related Mortgage Notes and the Mortgages sold by the Seller
to the Depositor are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION 2.09. Covenants of the
Sellers .
Each Seller hereby covenants that, except
for the transfer hereunder, such Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any lien on any Mortgage Loan, or any
interest therein; such Seller will notify the Trustee, as assignee
of the Depositor, and the Master Servicer of the existence of any
lien on any Mortgage Loan immediately upon discovery thereof, and
such Seller will defend the right, title and interest of the
Trustee, as assignee of the Depositor, in, to and under the
Mortgage Loans, against all claims of third parties claiming
through or under such Seller; provided, however , that
nothing in this Section 2.09 shall prevent or be deemed to prohibit
such Seller from suffering to exist upon any of the Mortgage Loans
any liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time
be due and payable or if such Seller shall currently be contesting
the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect
thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to
Administer and Service the Mortgage Loans .
The Servicer shall service and administer
the Mortgage Loans on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders (as
determined by the Servicer in its reasonable judgment) in
accordance with the terms of this Agreement and the Mortgage Loans
and, to the extent consistent with such terms, in the same manner
in which it services and administers similar mortgage loans for its
own portfolio, giving due consideration to customary and usual
standards of practice of mortgage lenders and loan servicers
administering similar mortgage loans but without regard
to:
(i)
any relationship that the Servicer, any
Sub-Servicer or any Affiliate of the Servicer or any Sub-Servicer
may have with the related Mortgagor;
(ii)
the ownership or non-ownership of any
Certificate by the Servicer or any Affiliate of the
Servicer;
(iii)
the Servicer’s obligation to make
Advances or Servi
