BEAR STEARNS ASSET BACKED SECURITIES I LLC,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Company
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
____________________
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2005
________________________________________
BEAR STEARNS ASSET BACKED SECURITIES I TRUST 2005-AC9
ASSET-BACKED CERTIFICATES, SERIES
2005-AC9
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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|
Section 1.01
|
Defined Terms.
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|
Section 1.02
|
Allocation of Certain Interest
Shortfalls.
|
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
|
|
Section 2.01
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Conveyance of Trust Fund.
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Section 2.02
|
Acceptance of the Mortgage Loans.
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Section 2.03
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Representations, Warranties and Covenants of the
Company, the Master Servicer and the Seller.
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|
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Section 2.04
|
Representations and Warranties of the
Depositor.
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Section 2.05
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Delivery of Opinion of Counsel in Connection
with Substitutions and Repurchases.
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|
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Section 2.06
|
Countersignature and Delivery of
Certificates.
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ARTICLE III
ADMINISTRATION AND SERVICING OF EMC
MORTGAGE LOANS BY COMPANY
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|
Section 3.01
|
The Company.
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Section 3.02
|
Due-on-Sale Clauses; Assumption
Agreements.
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Section 3.03
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Subservicers.
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Section 3.04
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Documents, Records and Funds in Possession of
Company To Be Held for Trustee.
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Section 3.05
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Maintenance of Hazard Insurance.
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Section 3.06
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Presentment of Claims and Collection of
Proceeds.
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Section 3.07
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Maintenance of the Primary Mortgage Insurance
Policies.
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Section 3.08
|
Fidelity Bond, Errors and Omissions
Insurance.
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|
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Section 3.09
|
Realization Upon Defaulted Mortgage Loans;
Determination of Excess Liquidation Proceeds
and Realized Losses; Repurchases of Certain Mortgage
Loans.
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|
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Section 3.10
|
Servicing Compensation.
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Section 3.11
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REO Property.
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Section 3.12
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Liquidation Reports.
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Section 3.13
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Annual Statement as to Compliance; Annual
Certification.
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Section 3.14
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Annual Independent Certified Public
Accountants’ Servicing Report.
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Section 3.15
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Books and Records.
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ARTICLE IV
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS BY MASTER SERVICER
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|
Section 4.01
|
Master Servicer
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Section 4.02
|
REMIC-Related Covenants
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Section 4.03
|
Monitoring of Company and Servicer
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Section 4.04
|
Fidelity Bond.
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Section 4.05
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Power to Act; Procedures
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Section 4.06
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Due-on-Sale Clauses; Assumption
Agreements
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|
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Section 4.07
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Release of Mortgage Files
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Section 4.08
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Documents, Records and Funds in Possession of
Master Servicer, Company and Servicer
To Be Held for Trustee.
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|
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Section 4.09
|
Standard Hazard Insurance and Flood Insurance
Policies.
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|
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Section 4.10
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Presentment of Claims and Collection of
Proceeds.
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|
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Section 4.11
|
Maintenance of the Primary Mortgage Insurance
Policies.
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|
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Section 4.12
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Trustee to Retain Possession of Certain
Insurance Policies and Documents.
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Section 4.13
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Realization Upon Defaulted Mortgage
Loans.
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Section 4.14
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Compensation for the Master Servicer.
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Section 4.15
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REO Property.
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Section 4.16
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Annual Officer’s Certificate as to
Compliance.
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Section 4.17
|
Annual Independent Accountant’s Servicing
Report
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Section 4.18
|
Reports Filed with Securities and Exchange
Commission
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Section 4.20
|
Optional Purchase of Certain Mortgage
Loans.
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ARTICLE V
ACCOUNTS
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Section 5.01
|
Collection of Mortgage Loan Payments; Protected
Account.
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Section 5.02
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Permitted Withdrawals From the Protected
Account.
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Section 5.03
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Reports to Master Servicer.
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Section 5.04
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Collection of Taxes; Assessments and Similar
Items; Escrow Accounts.
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Section 5.05
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Servicer Protected Accounts
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Section 5.06
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Master Servicer Collection Account
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Section 5.07
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Permitted Withdrawals and Transfers from the
Master Servicer Collection Account
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Section 5.08
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Distribution Account.
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Section 5.09
|
Permitted Withdrawals and Transfers from the
Distribution Account.
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ARTICLE VI
DISTRIBUTIONS AND
ADVANCES
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Section 6.02
|
Compensating Interest Payments.
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Section 6.03
|
REMIC Distributions.
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Section 6.04
|
Distributions.
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Section 6.05
|
Allocation of Realized Losses.
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Section 6.06
|
Monthly Statements to
Certificateholders.
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Section 6.07
|
REMIC Designations and REMIC I
Distributions.
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Section 6.08
|
Net WAC Reserve Fund.
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Section 6.09
|
Class A-1/A-2 Net WAC Pass-Through Amount; Class
A-1/A-2 Net WAC Reserve Account.
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Section 6.10
|
Class A-3/A-4 Net WAC Pass-Through Amount; Class
A-3/A-4 Net WAC Reserve Account.
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Section 6.11
|
Class P Certificate Account
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Section 6.12
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Class A-5 Policy Matters.
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ARTICLE VII
THE CERTIFICATES
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Section 7.01
|
The Certificates.
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Section 7.02
|
Certificate Register; Registration of Transfer
and Exchange of Certificates.
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Section 7.03
|
Mutilated, Destroyed, Lost or Stolen
Certificates.
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Section 7.04
|
Persons Deemed Owners.
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Section 7.05
|
Access to List of Certificateholders’
Names and Addresses.
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Section 7.06
|
Book-Entry Certificates.
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Section 7.07
|
Notices to Depository.
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Section 7.08
|
Definitive Certificates.
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Section 7.09
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Maintenance of Office or Agency.
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ARTICLE VIII
THE COMPANY AND THE MASTER
SERVICER
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|
Section 8.01
|
Liabilities of the Depositor, the Company and
the Master Servicer
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Section 8.02
|
Merger or Consolidation of the Depositor, the
Company or the Master Servicer.
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|
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Section 8.03
|
Indemnification of the Trustee, the Master
Servicer and the Securities Administrator.
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Section 8.04
|
Limitations on Liability of the Depositor, the
Company, the Master Servicer and Others
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Section 8.05
|
Master Servicer and Company Not to
Resign
|
|
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Section 8.06
|
Successor Master Servicer
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Section 8.07
|
Sale and Assignment of Master
Servicing
|
ARTICLE IX
DEFAULT; TERMINATION OF MASTER
SERVICER; TERMINATION OF COMPANY
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|
Section 9.01
|
Events of Default.
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Section 9.02
|
Trustee to Act; Appointment of
Successor.
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Section 9.03
|
Notification to Certificateholders and the Class
A-5 Insurer.
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Section 9.04
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Waiver of Defaults.
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Section 9.05
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Company Default.
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Section 9.06
|
Waiver of Company Defaults.
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ARTICLE X
CONCERNING THE TRUSTEE AND THE
SECURITIES ADMINISTRATOR
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|
Section 10.01
|
Duties of Trustee and Securities
Administrator.
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Section 10.02
|
Certain Matters Affecting the Trustee and the
Securities Administrator.
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|
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Section 10.03
|
Trustee and Securities Administrator Not Liable
for Certificates or Mortgage Loans.
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Section 10.04
|
Trustee and Securities Administrator May Own
Certificates.
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|
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Section 10.05
|
Trustee’s and Securities
Administrator’s Fees and Expenses.
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Section 10.06
|
Eligibility Requirements for Trustee and
Securities Administrator.
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Section 10.08
|
Resignation and Removal of Trustee and
Securities Administrator.
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Section 10.09
|
Successor Trustee or Securities
Administrator.
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Section 10.10
|
Merger or Consolidation of Trustee or Securities
Administrator.
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Section 10.11
|
Appointment of Co-Trustee or Separate
Trustee.
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|
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Section 10.12
|
Tax Matters.
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ARTICLE XI
TERMINATION
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Section 11.01
|
Termination upon Liquidation or Repurchase of
all Mortgage Loans.
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Section 11.02
|
Final Distribution on the
Certificates.
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|
|
Section 11.03
|
Additional Termination Requirements.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
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Section 12.02
|
Recordation of Agreement;
Counterparts.
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Section 12.03
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Governing Law.
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Section 12.04
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Intention of Parties.
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Section 12.06
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Severability of Provisions.
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Section 12.07
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Assignment.
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Section 12.08
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Limitation on Rights of
Certificateholders.
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Section 12.09
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Inspection and Audit Rights
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Section 12.10
|
Certificates Nonassessable and Fully
Paid.
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Section 12.11
|
Section 12.11 Class A-5 Insurer
Rights.
|
Exhibits
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Exhibit A-1
|
Form of Class A-[1][2][3][4][5]
Certificates
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Exhibit A-2
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Form of Class M-[1][2][3]
Certificates
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Exhibit A-3
|
Form of Class B-[1][2][3][4]
Certificates
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Exhibit A-4
|
Form of Class C
Certificates
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Exhibit A-5
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Form of Class P
Certificates
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Exhibit A-6
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Form of Class R-[1][2][3]
Certificates
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Exhibit B
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Mortgage Loan Schedule
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Exhibit C
|
Form of Transfer
Affidavit
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Exhibit D
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Form of Transferor
Certificate
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Exhibit E
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Form of Investment Letter (Non-Rule
144A)
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Exhibit F
|
Form of Rule 144A Investment
Letter
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Exhibit G
|
Form of Request for
Release
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Exhibit H
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DTC Letter of
Representations
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Exhibit I
|
Schedule of Mortgage Loans with Lost
Notes
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|
Exhibit J
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Form of Custodial
Agreement
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Exhibit K
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Form of Company
Certification
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Exhibit L
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Form of Mortgage Loan Purchase
Agreement
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Exhibit M
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Form of Class A-5 Policy
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Exhibit N
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Form of Yield Maintenance Agreement
|
POOLING AND SERVICING AGREEMENT,
dated as of November 1, 2005, among BEAR STEARNS ASSET BACKED
SECURITIES I LLC, a Delaware limited liability company, as
depositor (the “Depositor”), EMC MORTGAGE CORPORATION,
a Delaware corporation, as seller (in such capacity, the
“Seller”) and as company (in such capacity, the
“Company”), WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as master servicer (in such capacity,
the “Master Servicer”) and as securities administrator
(in such capacity, the “Securities Administrator”) and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity, but solely as trustee (the
“Trustee”).
PRELIMINARY STATEMENT
The Depositor is the owner of the
Trust Fund that is hereby conveyed to the Trustee in return for the
Certificates. On or prior to the Closing Date, the Depositor
acquired the Mortgage Loans from the Seller. On the Closing Date,
the Depositor will sell the Mortgage Loans and certain other
property to the Trust Fund and receive in consideration therefore
Certificates evidencing the entire beneficial ownership interest in
the Trust Fund.
REMIC I
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the Mortgage Loans and certain other related assets subject to
this Agreement (other than the Net WAC Reserve Fund, the Class
A-1/A-2 Net WAC Reserve Account, the Class A-3/A-4 Net WAC Reserve
Account, any Prepayment Charge Waiver Amounts and the Yield
Maintenance Agreement) as a REMIC (as defined herein) for federal
income tax purposes, and such segregated pool of assets will be
designated as “REMIC I.” The Class R-1 Certificates
will represent the sole class of Residual Interests in REMIC I for
purposes of the REMIC Provisions (as defined herein). The following
table irrevocably sets forth the designation, the Uncertificated
REMIC I Pass-Through Rate, the initial Uncertificated Principal
Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC I Regular Interests (as defined
herein). None of the REMIC I Regular Interests will be
certificated.
|
|
|
Initial Uncertificated
Principal Balance
|
|
Uncertificated
REMIC I
Pass-Through Rate
|
|
Latest Possible
Maturity Date
(1)
|
|
AA
|
|
$ 400,155,400.14
|
|
Variable(2)
|
|
December 25, 2035
|
|
A-1
|
|
$ 600,000.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
A-3
|
|
$ 1,726,705.04
|
|
Variable(2)
|
|
December 25, 2035
|
|
A-5
|
|
$ 750,000.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
M-1
|
|
$ 373,610.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
M-2
|
|
$ 212,330.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
M-3
|
|
$ 81,670.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
B-1
|
|
$ 38,790.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
B-2
|
|
$ 55,120.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
B-3
|
|
$ 65,330.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
B-4
|
|
$ 144,950.00
|
|
Variable(2)
|
|
December 25, 2035
|
|
ZZ
|
|
$ 4,117,931.70
|
|
Variable(2)
|
|
December 25, 2035
|
|
P
|
|
$ 100.00
|
|
0.00%
|
|
December 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each of the REMIC I Regular
Interests.
|
|
(2)
|
Calculated in accordance with the definition of
“Uncertificated REMIC I Pass-Through Rate”
herein.
|
REMIC II
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC II.” The Class R-2 Certificates will represent
the sole class of Residual Interests in REMIC II for purposes of
the REMIC Provisions. The following table irrevocably sets forth
the designation, the Uncertificated REMIC II Pass-Through Rate, the
initial Uncertificated Principal Balance and, for purposes of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC
II Regular Interests (as defined herein). None of the REMIC II
Regular Interests will be certificated.
|
|
|
Initial Uncertificated
Principal Balance
|
|
Uncertificated REMIC I
Pass-Through Rate
|
|
Latest Possible
Maturity Date
(1)
|
|
Class A-1
|
|
$ 60,000,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class A-3
|
|
$ 172,670,504.00
|
|
(2)
|
|
December 25, 2035
|
|
Class A-5
|
|
$ 75,000,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class M-1
|
|
$ 37,361,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class M-2
|
|
$ 21,233,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class M-3
|
|
$ 8,167,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class B-1
|
|
$ 3,879,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class B-2
|
|
$ 5,512,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class B-3
|
|
$ 6,533,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class B-4
|
|
$ 14,495,000.00
|
|
(2)
|
|
December 25, 2035
|
|
Class C
|
|
$ 3,471,332.88
|
|
(2) (3)
|
|
December 25, 2035
|
|
Class P
|
|
$ 100.00
|
|
0.00%
|
|
December 25, 2035
|
___________________
(1)
For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution
Date in the month following the maturity date for the Mortgage Loan
with the latest maturity date has been designated as the
“latest possible maturity date” for each of the REMIC
II Regular Interests.
|
(2)
|
Calculated in accordance with the
definition of “Uncertificated REMIC II Pass-Through
Rate” herein.
|
(3)
REMIC II Regular Interest C will not
accrue interest on its Uncertificated Principal Balance, but will
accrue interest at the related Uncertificated REMIC II Pass-Through
Rate on its Uncertificated Notional Amount which shall equal the
aggregate of the Uncertificated Principal Balances of the REMIC I
Regular Interests other than REMIC I Regular Interest P.
REMIC III
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC II Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC III.” The Class R-3 Certificates will represent
the sole class of Residual Interests in REMIC III for purposes of
the REMIC Provisions.
The following table irrevocably sets
forth the Class designation, Pass-Through Rate and Initial
Certificate Principal Balance for each Class of Certificates that
represents one or more of the Regular Interests in REMIC III
created hereunder.
|
|
|
Initial Certificate
Principal Balance
|
|
|
|
Latest Possible
Maturity Date
(1)
|
|
Class A-1
|
|
$ 60,000,000.00
|
|
Class A-1 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class A-2
|
|
N/A (2)
|
|
Class A-2 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class A-3
|
|
$ 118,710,971.00
|
|
Class A-3 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class A-4
|
|
$ 53,959,533.00
(4)
|
|
Class A-4 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class A-5
|
|
$ 75,000,000.00
|
|
Class A-5 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class M-1
|
|
$ 37,361,000.00
|
|
Class M-1 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class M-2
|
|
$ 21,233,000.00
|
|
Class M-2 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class M-3
|
|
$ 8,167,000.00
|
|
Class M-3 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class B-1
|
|
$ 3,879,000.00
|
|
Class B-1 Pass Through
Rate
|
|
December 25, 2035
|
|
Class B-2
|
|
$ 5,512,000.00
|
|
Class B-2 Pass-Through
Rate
|
|
December 25, 2035
|
|
Class B-3
|
|
$ 6,533,000.00
|
|
Class B-3 Pass Through
Rate
|
|
December 25, 2035
|
|
Class B-4
|
|
$ 14,495,000.00
|
|
Class B-4 Pass Through
Rate
|
|
December 25, 2035
|
|
Class C
|
|
$ 3,471,332.88
|
|
(3)
|
|
December 25, 2035
|
|
Class P
|
|
$ 100.00
|
|
0.00%
|
|
December 25, 2035
|
___________________
|
(1)
|
For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution
Date in the month following the maturity date for the Mortgage Loan
with the latest maturity date has been designated as the
“latest possible maturity date” for each Class of
Certificates that represents one or more of the Regular Interests
in REMIC III.
|
|
(2)
|
The Class A-2 Certificates will
accrue interest at the Class A-2 Pass-Through Rate on the
Certificate Notional Amount of the Class A-2 Certificates
calculated in accordance with the definition of “Certificate
Notional Amount” herein. The Class A-2 Certificates will not
be entitled to distributions in respect of principal.
|
|
(3)
|
The Class C Certificate will not
accrue interest on its Certificate Principal Balance, but will be
entitled to 100% of amounts distributed on REMIC II Regular
Interest C.
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(4)
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For federal income tax purposes, the
Regular Interest the ownership of which is represented by the Class
A-4 Certificates shall have a principal balance equal to the
Certificate Principal Balance of such Certificates, and such
Regular Interest shall not accrue interest on its principal balance
but rather shall be entitled to interest on its Uncertificated
Notional Amount at its Uncertificated REMIC III Pass-Through Rate,
in each case as defined herein.
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The Trust Fund shall be named, and
may be referred to as, the “Bear Stearns Asset Backed
Securities I Trust 2005-AC9.” The Certificates issued
hereunder may be referred to as “Asset-Backed Certificates
Series 2005-AC9” (including for purposes of any endorsement
or assignment of a Mortgage Note or Mortgage).
In consideration of the mutual
agreements herein contained, the Depositor, the Master Servicer,
the Securities Administrator, the Seller, the Company and the
Trustee agree as follows:
ARTICLE
I
DEFINITIONS
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Section 1.01
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Defined Terms.
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In addition to those terms defined
in Section 1.02, whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall
have the following meanings:
20% Clean-up Call Date
: Shall mean the first Distribution
Date upon which the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of the related Due Period is less than
or equal to 20% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans.
Accepted Master Servicing
Practices : With respect
to any Mortgage Loan, those customary mortgage 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 the Company or the
related Servicer).
Accepted Servicing
Practices : With respect
to each EMC Mortgage Loan, those mortgage servicing practices
(including collection procedures) that are in accordance with all
applicable statutes, regulations and prudent mortgage banking
practices for similar mortgage loans.
Accounts : The Distribution Account, the Master Servicer
Collection Account, the Class P Certificate Account, the Net WAC
Reserve Fund, the Class A-1/A-2 Net WAC Reserve Account, the Class
A-3/A-4 Net WAC Reserve Account, the Class A-5 Policy Payments
Account and any Protected Account.
Additional Interest
Amount : With respect to
the Class A-1 Certificates, the amount paid by the Counterparty to
the Holders of the Class A-1 Certificates to the extent One-Month
LIBOR plus 0.60% per annum exceeds 5.50% per annum, subject to a
ceiling of 9.50% per annum.
Additional Master Servicing
Compensation : The
meaning specified in Section 4.14.
Advance : An advance of delinquent payments of principal
or interest in respect of a Mortgage Loan required to be made by
the Company as provided in Section 6.01(a) hereof, by the related
Servicer in accordance with the related Servicing Agreement or by
the Master Servicer as provided in Section 6.01(b)
hereof.
Agreement : This Pooling and Servicing Agreement and any
and all amendments or supplements hereto made in accordance with
the terms herein.
Amount Held for Future
Distribution : As to any
Distribution Date, the aggregate amount held in the Company’s
or the related Sevicer’s Protected Account at the close of
business on the immediately preceding Determination Date on account
of (i) all Scheduled Payments or portions thereof received in
respect of the Mortgage Loans due after the related Due Period and
(ii) Principal Prepayments, Liquidation Proceeds and Insurance
Proceeds received in respect of such Mortgage Loans after the last
day of the related Prepayment Period.
Applied Realized Loss
Amount : With respect to
any Distribution Date and a Class of Subordinate Certificates or
Class C Certificates, the sum of the Realized Losses with respect
to the Mortgage Loans which have been applied in reduction of the
Certificate Principal Balance of that Class of Certificates
pursuant to Section 6.05 of this Agreement, which have not
previously been reimbursed.
Appraised Value
: With respect to any Mortgage Loan
originated in connection with a refinancing, the appraised value of
the Mortgaged Property based upon the appraisal made at the time of
such refinancing or, with respect to any other Mortgage Loan, the
lesser of (x) the appraised value of the Mortgaged Property based
upon the appraisal made by a fee appraiser at the time of the
origination of the related Mortgage Loan, and (y) the sales price
of the Mortgaged Property at the time of such
origination.
Assignment Agreement
: Shall mean any of the GreenPoint
Assignment Agreement, the PHH Assignment Agreement or the SunTrust
Assignment Agreement.
Available Funds
: The sum of Interest Funds and
Principal Funds with respect to the Mortgage Loans.
Bankruptcy Code
: Title 11 of the United States
Code.
Bishop’s Gate
: Bishop’s Gate Residential
Mortgage Trust, and any successor thereto.
Basic Principal Distribution
Amount : Shall mean, with
respect to any Distribution Date, the lesser of (a) the excess of
(i) the Available Funds for such Distribution Date over (ii) the
aggregate Monthly Interest Distributable Amount for the
Certificates (other than the Class P, Class C and Class R
Certificates) for such Distribution Date and (b) the excess of (i)
the Principal Remittance Amount for such Distribution Date over
(ii) the Overcollateralization Release Amount, if any, for such
Distribution Date.
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 7.06). As of the Closing Date, each Class of Offered
Certificates constitutes a Class of Book-Entry
Certificates.
Business Day
: Any day other than (i) a Saturday
or a Sunday, or (ii) a day on which banking institutions in The
City of New York, New York, Minneapolis, Minnesota, Columbia,
Maryland or the city in which the Corporate Trust Office of the
Trustee or the principal office of the Company or the Master
Servicer is located are authorized or obligated by law or executive
order to be closed.
Certificate
: Any one of the certificates of any
Class executed and authenticated by the Securities Administrator in
substantially the forms attached hereto as Exhibits A-1 through
A-6.
Certificate Notional
Amount : As to any Class
A-2 Certificate and any Distribution Date, the Certificate
Principal Balance of the Class A-1 Certificates; for federal income
tax purposes,
however, the equivalent of the
foregoing, expressed as the Uncertificated Principal Balance of
REMIC II Regular Interest A-1. As to the Class C Certificates and
any Distribution Date, an amount equal to the aggregate Stated
Principal Balance of the Mortgage Loans. The initial Certificate
Notional Amount of the Class C Certificates shall be
$408,321,836.88. For federal income tax purposes, however, the
Class C Certificates will have a Certificate Notional Amount equal
to the Uncertificated Notional Amount of REMIC II Regular Interest
C.
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal
Balance : As to any
Certificate (other than the Class A-2, Class C or any Class R
Certificate) and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate plus any
Subsequent Recoveries added to the Certificate Principal Balance of
such Certificate pursuant to Section 6.05 less the sum of (i) all
amounts distributed with respect to such Certificate in reduction
of the Certificate Principal Balance thereof on previous
Distribution Dates pursuant to Section 6.04 and (ii) in the case of
the Subordinate Certificates, any Applied Realized Loss Amounts
allocated to such Certificate on previous Distribution Dates. As to
the Class C Certificates and as of any Distribution Date, an amount
equal to the excess, if any, of (A) the then aggregate Stated
Principal Balance of the Mortgage Loans over (B) the then aggregate
Certificate Principal Balance of the Class A, Class M and Class B
Certificates then outstanding.
Certificate Register
: The register maintained pursuant
to Section 7.02 hereof.
Certificateholder or
Holder : The person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the
case of any Book-Entry Certificates).
Class : All Certificates bearing the same Class
designation as set forth in Section 7.01 hereof.
Class A Certificates
: Any of Class A-1, Class A-2,
Class A-3, Class A-4 and Class A-5 Certificates.
Class A-1 Certificate
: Any Certificate designated as a
“Class A-1 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-1
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III, (ii) the right to receive the Net WAC Rate
Carryover Amount, (iii) the obligation to pay the Class A-1/A-2 Net
WAC Pass-Through Amount and (iv) the right to receive payments
under the Yield Maintenance Agreement.
Class A-1 Pass-Through
Rate : Shall mean on any
Distribution Date, One-Month LIBOR plus 0.60% per annum, with a
maximum rate of 5.50% per annum and a minimum rate of 0.60% per
annum, subject to the applicable Interest Rate Cap.
Class A-1/A-2 Net WAC Reserve
Fund : Shall mean the
separate trust account or subaccount created and maintained by the
Securities Administrator pursuant to Section 6.09(a)
hereof.
Class A-1/A-2 Net WAC Reserve
Fund Deposit : With
respect to the Class A-1/A-2 Net WAC Reserve Fund, an amount equal
to $5,000, which the Depositor shall deposit initially into the
Class A-1/A-2 Net WAC Reserve Fund pursuant to Section 6.09(a)
hereof.
Class A-1/A-2 Net WAC
Pass-Through Amount :
Shall mean, with respect to any Distribution Date, the excess of
(A) the amount of interest the Class A-1 Certificates would have
been entitled to receive if no Interest Rate Cap applied, over (B)
the amount of interest the Class A-1 Certificates would have been
entitled to receive if reductions under the related Interest Rate
Cap were allocated as provided in the definition thereof; provided,
however, if One-Month LIBOR plus the applicable margin for the
Class A-1 Certificates for such Distribution Date is equal to or
greater than the rate of interest for the Class A-1 Certificates
determined as if the related Interest Rate Cap allocable to the
Class A-1 Certificates and Class A-2 Certificates were allocated to
the Class A-1 Certificates, the amount determined under clause (A)
would be determined as if the related Interest Rate Cap allocable
to the Class A-1 Certificates and Class A-2 Certificates were
allocated to the Class A-1 Certificates.
Class A-1/A-2 Target
Rate : Shall mean (A) for
Distributions Dates on or prior to the Optional Termination Date,
5.50% per annum and (B) for Distribution Dates thereafter, 6.00%
per annum.
Class A-2 Certificate
: Any Certificate designated as a
“Class A-2 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-2
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the right to receive the Class A-1/A-2
Net WAC Pass-Through Amount.
Class A-2 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, 4.90% per annum minus One-Month LIBOR, with a
maximum rate of 4.90% per annum and a minimum rate of 0.00% per
annum and (ii) for any Distribution Date thereafter, the sum of (x)
4.90% per annum minus One-Month LIBOR and (y) 0.50% per annum, with
a maximum rate of 5.40% per annum and a minimum rate of 0.50% per
annum, in each case subject to the applicable Interest Rate
Cap.
Class A-3 Certificate
: Any Certificate designated as a
“Class A-3 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-3
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class A-3/A-4
Net WAC Pass-Through Amount.
Class A-3 Pass-Through
Rate : Shall mean on any
Distribution Date, One-Month LIBOR plus 0.35% per annum, with a
maximum rate of 8.00% per annum and a minimum rate of 0.35% per
annum, subject to the applicable Interest Rate Cap.
Class A-3/A-4 Net WAC Reserve
Fund : Shall mean the
separate trust account or subaccount created and maintained by the
Securities Administrator pursuant to Section 6.10(a)
hereof.
Class A-3/A-4 Net WAC Reserve
Fund Deposit : With
respect to the Class A-3/A-4 Net WAC Reserve Fund, an amount equal
to $5,000, which the Depositor shall deposit initially into the
Class A-3/A-4 Net WAC Reserve Fund pursuant to Section 6.10(a)
hereof.
Class A-3/A-4 Net WAC
Pass-Through Amount :
Shall mean, with respect to any Distribution Date, the excess of
(A) the amount of interest the Class A-3 Certificates would have
been entitled to receive if no Interest Rate Cap applied, over (B)
the amount of interest the Class A-3 Certificates would have been
entitled to receive if reductions under the related Interest Rate
Cap were allocated as provided in the definition thereof; provided,
however, if One-Month LIBOR plus the applicable margin for the
Class A-3 Certificates for such Distribution Date is equal to or
greater than the rate of interest for the Class A-3 Certificates
determined as if the related Interest Rate Cap allocable to the
Class A-3 Certificates and Class A-4 Certificates were allocated to
the Class A-3 Certificates, the amount determined under clause (A)
would be determined as if the related Interest Rate Cap allocable
to the Class A-3 Certificates and Class A-4 Certificates were
allocated to the Class A-3 Certificates.
Class A-3/A-4 Target
Rate : Shall mean (A) for
any Distribution Date on or prior to the Optional Termination Date,
5.50% per annum and (B) for any Distribution Date thereafter, 6.00%
per annum.
Class A-4 Certificate
: Any Certificate designated as a
“Class A-4 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-4
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the right to receive the Class A-3/A-4
Net WAC Pass-Through Amount.
Class A-4 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, 16.83% per annum minus the product of 2.2 and
One-Month LIBOR, with a maximum rate of 16.83% per annum and a
minimum rate of 0.00% per annum and (ii) for each Distribution Date
thereafter, the sum of (x) 16.83% per annum minus the product of
2.2 and One-Month LIBOR and (y) 1.60% per annum, with a maximum
rate of 18.43% per annum and a minimum rate of 1.60% per annum, in
each case subject to the applicable Interest Rate Cap.
Class A-5 Certificate
: Any Certificate designated as a
“Class A-5 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-5
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class A-5 Deficiency
Amount : With respect to
any Distribution Date and the Class A-5 Certificates, an amount, if
any, equal to the sum of (i) the excess of (x) the Monthly Interest
Distributable Amount for the Class A-5 Certificates on such
Distribution Date over (y) the Interest Funds from the Mortgage
Loans on such Distribution Date allocated to pay the Monthly
Interest Distributable Amount on the Class A-5 Certificates on such
Distribution Date as provided in Section 6.04(a) of this Agreement;
and (ii) the Certificate Principal Balance of the Class A-5
Certificates to the extent unpaid on the Last Scheduled
Distribution Date or earlier termination of the Trust Fund pursuant
to the terms of this Agreement, in each case after giving effect to
distributions made on such date from all sources other than the
Class A-5 Policy.
Class A-5 Insurance
Agreement : The Insurance
and Indemnity Agreement dated as of November 30, 2005 among the
Class A-5 Insurer, the Seller, the Depositor and the
Trustee.
Class A-5 Insurer
: Financial Guaranty Insurance
Company, a stock insurance corporation organized and created under
the laws of the State of New York, or any successor
thereto.
Class A-5 Insurer
Default : The existence
and continuance of any of the following: (a) The Class A-5
Insurer fails to make a payment required under the Class A-5 Policy
in accordance with its terms; or (b)(i) the Class A-5 Insurer
(A) files any petition or commences any case or proceeding under
any provision or chapter of the Bankruptcy Code, the New York
Insurance Law or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (B) makes a general assignment for the benefit of
its creditors, or (C) has an order for relief entered against it
under the Bankruptcy Code, the New York Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization that is final and
nonappealable; or (ii) a court of competent jurisdiction, the New
York Department of Insurance or other competent regulatory
authority enters a final and nonappealable order, judgment or
decree (A) appointing a custodian, trustee, agent or receiver for
the Class A-5 Insurer or for all or any material portion of its
property or (B) authorizing the taking of possession by a
custodian, trustee, agent or receiver of the Class A-5 Insurer (or
the taking of possession of all or any material portion of the
property of the Class A-5 Insurer).
Class A-5 Insurer Premium
Amount : With respect to
the Class A-5 Policy and each Distribution Date, an amount equal to
the product of the applicable Class A-5 Insurer Premium Rate and
the related Certificate Principal Balance of the Class A-5
Certificates immediately prior to such Distribution
Date.
Class A-5 Insurer Premium
Rate : A percentage equal
to one-twelfth (1/12) of the related “premium
percentage” for the Class A-5 Certificates as set forth in
the Class A-5 Insurance Agreement.
Class A-5 Notice of
Nonpayment : Written
notice in the form of Exhibit A to the Class A-5 Policy.
Class A-5 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, a fixed rate equal to 5.75% per annum and (ii)
for each Distribution Date thereafter, a fixed rate equal to 6.25%
per annum, in each case subject to the related Interest Rate Cap
for such Distribution Date.
Class A-5 Policy
: The surety bond, policy number
05030141, including any endorsements thereto, issued by the Class
A-5 Insurer with respect to the Class A-5 Certificates, in the form
attached hereto as Exhibit M.
Class A-5 Policy Payments
Account : The separate
Eligible Account created and maintained by the Securities
Administrator pursuant to Section 6.12(c) in the name of the
Trustee for the benefit of the Class A-5 Certificateholders and
designated “U.S. Bank National Association, in trust for
registered holders of Bear Stearns Asset Backed Securities I Trust
2005-AC9, Asset-Backed Certificates, Series 2005-AC9, Class
A-5.” Funds in the Class A-5 Policy Payments Account shall be
held in trust for the Class A-5 Certificateholders for the uses and
purposes set forth in this Agreement.
Class A-5 Reimbursement
Amount : The sum of (a)
the aggregate unreimbursed amount of any payments made by the Class
A-5 Insurer under the Class A-5 Policy, together with interest on
such amount from the date of payment by the Class A-5 Insurer until
paid in full at the Late Payment Rate (as defined in the Class A-5
Insurance Agreement) and (b) any other amounts owed to the Class
A-5 Insurer under the Class A-5 Insurance Agreement or pursuant to
Section 6.12.
Class B Certificates
: Any of the Class B-1, Class B-2,
Class B-3 and Class B-4 Certificates.
Class B-1 Certificate
: Any Certificate designated as a
“Class B-1 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to the
Percentage Interest of distributions provided for the Class B-1
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class B-1 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 1.50% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 2.25% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class B-2 Certificate
: Any Certificate designated as a
“Class B-2 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to the
Percentage Interest of distributions provided for the Class B-2
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class B-2 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 1.90% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 2.85% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class B-3 Certificate
: Any Certificate designated as a
“Class B-3 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to the
Percentage Interest of distributions provided for the Class B-3
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class B-3 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 2.75% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 4.125% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class B-4 Certificate
: Any Certificate designated as a
“Class B-4 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to the
Percentage Interest of distributions provided for the Class B-4
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class B-4 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 3.00% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 4.50% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class C Certificate
: Any Certificate designated as a
“Class C Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class C Certificates
herein and evidencing (i) a Regular Interest in REMIC III, (ii) the
obligation to pay the Net WAC Rate Carryover Amount and (iii) the
right to any residual amounts under, and as described in, the Yield
Maintenance Agreement.
Class C Distribution
Amount : With respect to
any Distribution Date, the sum of (i) the Monthly Interest
Distributable Amount for the Class C Certificates for such
Distribution Date, (ii) any Overcollateralization Release Amount
for such Distribution Date and (iii) without duplication, any
Subsequent Recoveries not distributed to the Class M Certificates
and Class B Certificates on such Distribution Date; provided,
however, that on and after the Distribution Date on which the
Certificate Principal Balances of the Offered Certificates and
Class B-4 Certificates have been reduced to zero, the Class C
Distribution Amount shall include the Overcollateralized
Amount.
Class M Certificates
: Any of the Class M-1, Class M-2
and Class M-3 Certificates.
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to the
Percentage Interest of distributions provided for the Class M-1
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class M-1 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 0.45% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 0.675% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class M-2 Certificate
: Any Certificate designated as a
“Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to the
Percentage Interest of distributions provided for the Class M-2
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class M-2 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 0.67% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 1.005% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class M-3 Certificate
: Any Certificate designated as a
“Class M-3 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to the
Percentage Interest of distributions provided for the Class M-3
Certificates as set forth herein and evidencing (i) a Regular
Interest in REMIC III and (ii) the right to receive the Net WAC
Rate Carryover Amount.
Class M-3 Pass-Through
Rate : Shall mean (i) on
any Distribution Date which occurs on or prior to the Optional
Termination Date, One-Month LIBOR plus 0.72% per annum and (ii) for
each Distribution Date thereafter, One-Month LIBOR plus 1.08% per
annum, in each case subject to a cap equal to the related Interest
Rate Cap for such Distribution Date.
Class P Certificate
: Any Certificate designated as a
“Class P Certificate” on the face thereof, in the form
of Exhibit A-5 hereto, representing the right to its Percentage
Interest of distributions provided for the Class P Certificates as
set forth herein and evidencing (i) a Regular Interest in REMIC III
and (ii) the right to receive any Prepayment Charge Waiver
Amounts.
Class P Certificate
Account : The account
established and maintained by the Securities Administrator pursuant
to Section 6.11 hereof.
Class R Certificates
: Any of the Class R-1, Class R-2 or
Class R-3 Certificates.
Class R-1 Certificate
: Any Certificate designated a
“Class R-1 Certificate” on the face thereof, in
substantially the form set forth in Exhibit A-6 hereto, evidencing
the Residual Interest in REMIC I and representing the right to the
Percentage Interest of distributions provided for the Class R-1
Certificates as set forth herein.
Class R-2 Certificate
: Any Certificate designated a
“Class R-2 Certificate” on the face thereof, in
substantially the form set forth in Exhibit A-6 hereto, evidencing
the Residual Interest in REMIC II and representing the right to the
Percentage Interest of distributions provided for the Class R-2
Certificates as set forth herein.
Class R-3 Certificate
: Any Certificate designated a
“Class R-3 Certificate” on the face thereof, in
substantially the form set forth in Exhibit A-6 hereto, evidencing
the Residual Interest in REMIC III and representing the right to
the Percentage Interest of distributions provided for the Class R-3
Certificates as set forth herein.
Closing Date
: November 30, 2005.
Code : The Internal Revenue Code of 1986, including
any successor or amendatory provisions.
Company : EMC.
Compensating Interest
: An amount, not to exceed the
Servicing Fee, to be deposited in the Master Servicer Collection
Account by the Company or the related Servicer to the
payment
of a Prepayment Interest Shortfall
on a Mortgage Loan subject to this Agreement; provided that in the
event the Company or the related Servicer fails to make such
payment, the Master Servicer shall be obligated to do so to the
extent provided in Section 6.02(c) hereof.
Corporate Trust Office
: The designated office of the
Trustee where at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office
at the date of the execution of this Agreement is located at US
Bank Corporate Trust Services, One Federal Street, 3rd Floor,
Boston, Massachusetts 02110, Attention: Corporate Trust
Services/BSABS I 2005-AC9, or at such other address as the Trustee
may designate from time to time.
Corresponding
Certificate : With
respect to each REMIC II Regular Interest, the Certificate with the
corresponding designation.
Corresponding Interest
: With respect to each REMIC I
Regular Interest (other than REMIC I Regular Interests AA and ZZ),
the REMIC II Regular Interest with the corresponding
designation.
Counterparty
: Bear Stearns Financial Products
Inc.
Custodial Agreement
: An agreement, dated as of November
30, 2005, among the Depositor, the Seller, the Trustee and the
Custodian in substantially the form of Exhibit J hereto.
Custodian : Wells Fargo Bank, National Association, or any
successor custodian appointed pursuant to the provisions hereof and
the Custodial Agreement.
Cut-off Date
: The close of business on November
1, 2005.
Cut-off Date Principal
Balance : As to any
Mortgage Loan, the unpaid principal balance thereof as of the close
of business on the Cut-off Date after application of all Principal
Prepayments received prior to the Cut-off Date and scheduled
payments of principal due on or before the Cut-off Date, whether or
not received, but without giving effect to any installments of
principal received in respect of Due Dates after the Cut-off
Date.
Debt Service Reduction
: With respect to any Mortgage Loan,
a reduction by a court of competent jurisdiction in a proceeding
under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any other
reduction that results in a permanent forgiveness of
principal.
Deficient Valuation
: With respect to any Mortgage Loan,
a valuation by a court of competent jurisdiction of the Mortgaged
Property in an amount less than the then outstanding indebtedness
under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court that is final and
non-appealable in a proceeding under the Bankruptcy
Code.
Definitive
Certificates : As defined
in Section 7.06.
Deleted Mortgage Loan
: A Mortgage Loan replaced or to be
replaced by a Replacement Mortgage Loan.
Delinquent
: A Mortgage Loan is
“delinquent” if any payment due thereon is not made
pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage
Loan is “30 days delinquent” if such payment has not
been received by the close of business on the corresponding day of
the month immediately succeeding the month in which such payment
was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on
the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so
on.
Denomination
: With respect to each Certificate,
the amount set forth on the face thereof as the “Initial
Principal Balance of this Certificate”.
Depositor : Bear Stearns Asset Backed Securities I LLC, a
Delaware limited liability company, or its successor in
interest.
Depository
: The initial Depository shall be
The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a
“clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the Uniform
Commercial Code of the State of New York.
Depository Agreement
: With respect to the Class of
Book-Entry Certificates, the agreement among the Depositor, the
Trustee and the initial Depository, dated as of the Closing Date,
substantially in the form of Exhibit H.
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
: With respect to any Distribution
Date, the 15th day of the month of such Distribution Date or, if
such 15th day is not a Business Day, the immediately preceding
Business Day.
Distribution Account
: The separate Eligible Account
created and maintained by the Securities Administrator pursuant to
Section 5.08 in the name of the Trustee for the benefit of the
Certificateholders and designated “U.S. Bank National
Association, in trust for registered Holders of Bear Stearns Asset
Backed Securities I LLC, Asset-Backed Certificates, Series
2005-AC9” shall be held in trust for the Certificateholders
for the uses and purposes set forth in this Agreement.
Distribution Account Deposit
Date : As to any
Distribution Date, on or before 3:00 p.m. Eastern time on the
Business Day immediately preceding such Distribution
Date.
Distribution Date
: The 25th day of each calendar
month after the initial issuance of the Certificates, or if such
25th day is not a Business Day, the next succeeding Business Day,
commencing in December 2005.
Due Date : As to any Mortgage Loan, the date in each
month on which the related Scheduled Payment is due, as set forth
in the related Mortgage Note.
Due Period
: With respect to any Distribution
Date, the period from the second day of the calendar month
preceding the calendar month in which such Distribution Date occurs
through close of business on the first day of the calendar month in
which such 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 long-term unsecured debt obligations and
short-term unsecured debt obligations of which (or, in the case of
a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such
holding company, so long as Moody’s is not a Rating Agency)
are rated by each Rating Agency in one of its two highest long-term
and its highest short-term rating categories respectively, at the
time any amounts are held on deposit therein, or (ii) an account or
accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the
FDIC) and the uninsured deposits in which accounts are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered
to the Trustee and to each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such
funds that is superior to claims of any other depositors or
creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts
maintained with the corporate trust department of a federal or
state chartered depository institution or trust company having
capital and surplus of not less than $50,000,000, acting in its
fiduciary capacity or (iv) any other account acceptable to the
Rating Agencies. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
EMC : EMC Mortgage Corporation, a Delaware
corporation.
EMC Mortgage Loans
: Those Mortgage Loans serviced by
the Company pursuant to the terms of this Agreement.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA Restricted
Certificates : Any of the
Class B-4, Class C, Class P and Residual Certificates.
Event of Default
: As defined in Section 9.01
hereof.
Excess Liquidation
Proceeds : To the extent
not required by law to be paid to the related Mortgagor, the
excess, if any, of any Liquidation Proceeds with respect to a
Mortgage Loan over the Stated Principal Balance of such Mortgage
Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has
been liquidated.
Excess Spread
: With respect to any Distribution
Date is the excess, if any, of (i) the Interest Funds for such
Distribution Date over (ii) the sum of (a) the Class A-5 Insurer
Premium Amount payable to the Class A-5 Insurer for such
Distribution Date and (b) the related Monthly Interest
Distributable Amounts payable to the Offered Certificates and Class
B-4 Certificates on such Distribution Date and (c) any Class A-5
Reimbursement Amounts paid to the Class A-5 Insurer relating to the
interest draws on the Class A-5 Policy pursuant to item (3) of
clause first under Section 6.04(a).
Exemption : Prohibited Transaction Exemption 90-30, as
amended from time to time.
Extra Principal Distribution
Amount : With respect to
any Distribution Date (a) on or prior to the earlier of (1) the 20%
Clean-Up Call Date and (2) the Distribution Date in November 2015,
the lesser of (x) the Excess Spread for such Distribution Date and
(y) the Overcollateralization Increase Amount for such Distribution
Date; and (b) thereafter, the Excess Spread for such Distribution
Date; provided that, the Excess Spread in clause (b) will be used
first to pay the Overcollateralization Increase Amount, any Unpaid
Interest Shortfalls and any Net WAC Rate Carryover Amounts on such
Distribution Date.
Fannie Mae
: Fannie Mae (formerly, 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 or the
Class C Certificateholder pursuant to or as contemplated by Section
2.03(c) or Section 11.01), a determination made by the Company
pursuant to this Agreement or the applicable Servicer pursuant to
the related Servicing Agreement that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the
Company or such Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so
recovered. The Master Servicer shall maintain records, based solely
on information provided by each Servicer, of each Final Recovery
Determination made thereby.
Fiscal Quarter
: December 1 to February 29 (or the
last day in such month), March 1 to May 31, June 1 to August 31, or
September to November 30, as applicable.
Freddie Mac
: Freddie Mac (formerly The Federal
Home Loan Mortgage Corporation), or any successor
thereto.
Global Certificate
: Any Private Certificate registered
in the name of the Depository or its nominee, beneficial interests
in which are reflected on the books of the Depository or on the
books of a Person maintaining an account with such Depository
(directly or as an indirect participant in accordance with the
rules of such depository).
GreenPoint
: GreenPoint Mortgage Funding, Inc.,
and any successor thereto.
GreenPoint Assignment
Agreement : The
Assignment, Assumption and Recognition Agreement, dated as of
November 30, 2005, by and among the Seller, GreenPoint and the
Trustee evidencing the assignment of the GreenPoint Servicing
Agreement to the Trust.
GreenPoint Servicing
Agreement : The Purchase,
Warranties and Servicing Agreement, dated as of September 1, 2003,
between Seller and GreenPoint, as modified by the GreenPoint
Assignment Agreement.
Indemnified Persons
: The Trustee, the Master Servicer,
the Company, the Trust Fund 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.
Individual Certificate
: Any Private Certificate registered
in the name of the Holder other than the Depository or its
nominee.
Initial Certificate Principal
Balance : With respect to
any Certificate (other than the Class A-2 Certificate), the
Certificate Principal Balance of such Certificate or any
predecessor Certificate on the Closing Date.
Institutional Accredited
Investor : Any Person
meeting the requirements of Rule 501(a)(l), (2), (3) or (7) of
Regulation D under the Securities Act or any entity all of the
equity Holders in which come within such paragraphs.
Insurance Policy
: With respect to any Mortgage Loan
included in the Trust Fund, any insurance policy or LPMI Policy,
including all riders and endorsements thereto in effect with
respect to such Mortgage Loan, including any replacement policy or
policies for any Insurance Policies.
Insurance Proceeds
: Proceeds paid in respect of the
Mortgage Loans pursuant to any Insurance Policy or any other
insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the
Company, the related Servicer or the trustee under the deed of
trust and are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with
the procedures that the Company or the related Servicer would
follow in servicing mortgage loans held for its own account, in
each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses
: Expenses covered by an Insurance
Policy or any other insurance policy with respect to the Mortgage
Loans.
Interest Accrual
Period : With respect to
the Class A-5 and Class C Certificates and any Distribution Date,
the calendar month immediately preceding such Distribution Date.
With respect to the Class A-1, Class A-2, Class A-3, Class A-4,
Class M and Class B Certificates and any Distribution Date, the
period from and including the 25th day of the calendar month
preceding the calendar month in which the Distribution Date occurs
(or, with respect to the first Interest Accrual Period for the
Class M Certificates and Class B Certificates, the Closing Date) to
and including the 24th day of the calendar month in which such
Distribution Date occurs. All calculations of interest on the Class
A Certificates and Class C Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months. All
calculations of interest on the
Class M Certificates and Class B
Certificates will be made on the basis of the actual number of days
elapsed in the related Interest Accrual Period.
Interest Determination
Date : Shall mean the
second LIBOR Business Day preceding the commencement of each
Interest Accrual Period.
Interest Funds
: For any Distribution Date, (i) the
sum, without duplication, of (a) all scheduled interest during the
related Due Period with respect to the related Mortgage Loans less
the Servicing Fee, the Master Servicing Fee and the LPMI Fee, if
any, (b) all Advances relating to interest with respect to the
related Mortgage Loans made on or prior to the related Distribution
Account Deposit Date, (c) all Compensating Interest with respect to
the related Mortgage Loans required to be remitted by the Company
or the Master Servicer pursuant to this Agreement or the related
Servicer pursuant to the related Servicing Agreement with respect
to such Distribution Date, (d) Liquidation Proceeds and Subsequent
Recoveries with respect to the related Mortgage Loans collected
during the related Prepayment Period (to the extent such
Liquidation Proceeds and Subsequent Recoveries relate to interest),
(e) all amounts relating to interest with respect to each Mortgage
Loan repurchased by the Seller pursuant to Sections 2.02 and 2.03
and by EMC pursuant to Section 4.20 and (f) all amounts in respect
of interest paid by the Master Servicer pursuant to Section 11.01,
in each case to the extent remitted by the Company or the related
Servicer, as applicable, to the Distribution Account pursuant to
this Agreement or the related Servicing Agreement, minus (ii) all
amounts relating to interest required to be reimbursed pursuant to
Sections 5.02, 5.05, 5.07 and 5.09 or as otherwise set forth in
this Agreement.
Interest Rate Cap
: With respect to the Class A-1
Certificates and Class A-2 Certificates, will be calculated based
on an assumed certificate with a Certificate Principal Balance
equal to the Certificate Principal Balance of the Class A-1
Certificates and a fixed pass-through rate of 5.50% per annum and a
rate increase of 0.50% per annum after the optional termination
date. If the weighted average of the Net Mortgage Rates on the
Mortgage Loans is less than 5.50% per annum (or, after the Optional
Termination Date, 6.00% per annum), the amount of the shortfall
which would occur with respect to the assumed certificate will be
allocated among the Class A-1 Certificates and Class A-2
Certificates in proportion to their current entitlements to
interest calculated without regard to this cap.
With respect to the Class A-3
Certificates and Class A-4 Certificates, will be calculated based
on an assumed certificate with a principal balance equal to the
aggregate Certificate Principal Balance of the Class A-3
Certificates and Class A-4 Certificates and a fixed pass-through
rate of 5.50% per annum and a rate increase of 0.50% per annum
after the optional Termination Date. If the weighted average of the
Net Mortgage Rates on the Mortgage Loans is less than 5.50% per
annum (or, after the Optional Termination Date, 6.00% per annum),
the amount of the shortfall which would occur with respect to the
assumed certificate will be allocated among the Class A-3
Certificates and Class A-4 Certificates in proportion to their
current entitlements to interest calculated without regard to this
cap.
With respect to the Class A-5
Certificates and on any Distribution Date, the weighted average of
the Net Mortgage Rates of the Mortgage Loans for such Distribution
Date, minus the premium rate payable to the Class A-5 Insurer for
providing the financial guaranty insurance policy with respect to
the Class A-5 Certificates.
With respect to the Class M
Certificates and Class B Certificates and any Distribution Date,
the lesser of (i) 10.00% per annum and (ii) the weighted average of
the Net Mortgage Rates of the Mortgage Loans for such Distribution
Date.
For federal income tax purposes, the
Interest Rate Cap shall equal with respect to each of the Class A,
Class M and Class B Certificates, a rate equivalent to the
foregoing for each such Certificate, calculated using the weighted
average of the Uncertificated REMIC I Pass-Through Rates on the
REMIC I Regular Interests (other than REMIC I Regular Interest P)
in place of the weighted average of the Net Mortgage Rates of the
Mortgage Loans.
Interest Shortfall
: With respect to any Distribution
Date, means the aggregate shortfall, if any, in collections of
interest (adjusted to the related Net Mortgage Rates) on Mortgage
Loans resulting from (a) Principal Prepayments in full received
during the related Prepayment Period, (b) the partial Principal
Prepayments received during the related Prepayment Period to the
extent applied prior to the Due Date in the month of the
Distribution Date and (c) interest payments on certain of the
Mortgage Loans being limited pursuant to the provisions of the
Relief Act or similar state or local laws.
Last Scheduled Distribution
Date : December 25,
2035.
Latest Possible Maturity
Date : The Distribution
Date following the final scheduled maturity date of the Mortgage
Loan in the Trust Fund having the latest scheduled maturity date as
of the Cut-off Date. For purposes of the Treasury regulations under
Code Section 860A through 860G, the latest possible maturity date
of each Regular Interest issued by REMIC I, REMIC II and REMIC III
shall be the Latest Possible Maturity Date.
LIBOR Business Day
: Shall mean a day on which banks
are open for dealing in foreign currency and exchange in London and
New York City.
Liquidated Loan
: With respect to any Distribution
Date, a defaulted Mortgage Loan that has been liquidated through
deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the
real property subject to the related Mortgage and any security
agreements and as to which the Company or the related Servicer has
made a Final Recovery Determination with respect
thereto.
Liquidation Proceeds
: Amounts, other than Insurance
Proceeds, received in connection with the partial or complete
liquidation of a Mortgage Loan, whether through trustee’s
sale, foreclosure sale or otherwise, or in connection with any
condemnation or partial release of a Mortgaged Property and any
other proceeds received with respect to an REO Property, less the
sum of related unreimbursed Advances, Servicing Fees and Servicing
Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court
and reasonable attorneys fees.
Loan-to-Value Ratio
: The fraction, expressed as a
percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which
is the Appraised Value of the related Mortgaged
Property.
Loss Allocation
Limitation : The meaning
specified in Section 6.05(c) hereof.
LPMI Fee : Shall mean the fee payable to the insurer for
each Mortgage Loan subject to an LPMI Policy as set forth in such
LPMI Policy.
LPMI Policy
: A policy of mortgage guaranty
insurance issued by an insurer meeting the requirements of Fannie
Mae and Freddie Mac in which the Company or the related Servicer of
the related Mortgage Loan is responsible for the payment of the
LPMI Fee thereunder from collections on the related Mortgage
Loan.
Majority Class C
Certificateholder : Shall
mean the Holder of a 50.01% or greater Percentage Interest in the
Class C Certificates.
Marker Rate
: With respect to REMIC II Regular
Interest C and any Distribution Date, a per annum rate equal to two
(2) times the weighted average of the Uncertificated REMIC I
Pass-Through Rates for REMIC I Regular Interest A-1, REMIC I
Regular Interest A-3, REMIC I Regular Interest A-5, REMIC I Regular
Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3, REMIC I Regular
Interest B-4 and REMIC I Regular Interest ZZ, with the rate on each
such REMIC I Regular Interest (other than REMIC I Regular Interest
ZZ) subject to a cap equal to the Uncertificated REMIC II
Pass-Through Rate for the Corresponding Interest and with the rate
on REMIC I Regular Interest ZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that for this
purpose, the calculation of the Uncertificated REMIC I Pass-Through
Rate and the related cap with respect to REMIC I Regular Interest
M-1, REMIC I Regular Interest M-2, REMIC I Regular Interest M-3,
REMIC I Regular Interest B-1, REMIC I Regular Interest B-2, REMIC I
Regular Interest B-3 and REMIC I Regular Interest B-4 shall be
multiplied by a fraction, the numerator of which is the actual
number of days in the Interest Accrual Period and the denominator
of which is 30.
Master Servicer
: Wells Fargo Bank, National
Association, in its capacity as master servicer, and its successors
and assigns.
Master Servicer
Certification : A written
certification covering servicing of the Mortgage Loans by the
Company and all Servicers and signed by an officer of the Master
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 superceded 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
Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Master Servicer
Certification shall be as agreed to by the Master Servicer, the
Depositor and the Seller following a negotiation in good faith to
determine how to comply with any such new requirements.
Master Servicer Collection
Account : The trust
accounts or accounts created and maintained pursuant to Section
5.06 hereof, which shall be entitled “U.S. Bank National
Association, as Trustee f/b/o Holders of Bear Stearns Asset Backed
Securities I LLC, Asset Backed Certificates, Series 2005-AC9 -
Master Servicer Collection Account”.
Master Servicing
Compensation : For any
Distribution Date, the sum of the Master Servicing Fee and the
Additional Master Servicing Compensation for such Distribution
Date.
Master Servicing Fee
: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Master
Servicing Fee Rate multiplied by the Stated Principal Balance of
such Mortgage Loan as of the last day of the related Due
Period.
Master Servicing Fee
Rate : 0.01% per
annum.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS® System
: The system of recording transfers
of Mortgages electronically maintained by MERS.
MIN : The Mortgage Identification Number for
Mortgage Loans registered with MERS on the MERS®
System.
MOM Loan : With respect to any Mortgage Loan, MERS acting
as the mortgagee of such Mortgage Loan, solely as nominee for the
originator of such Mortgage Loan and its successors and assigns, at
the origination thereof.
Monthly Interest Distributable
Amount : With respect to
the Certificates (other than the Class P Certificates and Class R
Certificates) for any Distribution Date, means an amount equal to
the interest accrued during the related Interest Accrual Period at
the applicable Pass-Through Rate on the Certificate Principal
Balance (or Certificate Notional Amount) of such Certificate
immediately prior to such Distribution Date less such
Certificate’s share of any Unpaid Interest Shortfall and the
interest portion of any Realized Losses on the Mortgage Loans
allocated to such Certificate pursuant to Section 1.02. The Monthly
Interest Distributable Amount with respect to the Class A
Certificates and Class C Certificates is calculated on the basis of
a 360-day year consisting of twelve 30-day months. The Monthly
Interest Distributable Amount with respect to the Subordinate
Certificates is calculated on the basis of a 360-day year and the
actual number of days elapsed during the related Interest Accrual
Period. No Monthly Interest Distributable Amount will be payable
with respect to any Class of Certificates after the Distribution
Date on which the outstanding Certificate Principal Balance (or
Certificate Notional Amount) of such Certificate has been reduced
to zero.
Monthly Statement
: The statement delivered to the
Certificateholders pursuant to Section 6.06.
Moody’s
: Moody’s Investors Service,
Inc.
Mortgage : The mortgage, deed of trust or other
instrument creating a first lien on or first priority ownership
interest in an estate in fee simple in real property securing a
Mortgage Note.
Mortgage File
: The mortgage documents listed in
Section 2.01 hereof pertaining to a particular Mortgage Loan and
any additional documents delivered to the Trustee to be added to
the Mortgage File pursuant to this Agreement.
Mortgage Loans
: Such of the Mortgage Loans
transferred and assigned to the Trustee pursuant to the provisions
hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property. Any mortgage loan that was intended by the parties hereto
to be transferred to the Trust Fund as indicated by such Mortgage
Loan Schedule which is in fact not so transferred for any reason
including, without limitation, a breach of the representation
contained in Section 2.03(b)(v) hereof, shall continue to be a
Mortgage Loan hereunder until the Purchase Price with respect
thereto has been paid to the Trust Fund.
Mortgage Loan Purchase
Agreement : Shall mean
the Mortgage Loan Purchase Agreement, dated as of November 30,
2005, between the Seller, as seller and the Depositor, as
purchaser.
Mortgage Loan Purchase
Price : The price,
calculated as set forth in Section 11.01, to be paid in connection
with the repurchase of the Mortgage Loans pursuant to Section
11.01.
Mortgage Loan Schedule
: The list of Mortgage Loans (as
from time to time amended by the Company or the Master Servicer to
reflect the deletion of Deleted Mortgage Loans and the addition of
Replacement Mortgage Loans pursuant to the provisions of this
Agreement) transferred to the Trustee as part of the Trust Fund and
from time to time subject to this Agreement, the initial Mortgage
Loan Schedule being attached hereto as Exhibit B, setting forth the
following information with respect to each Mortgage
Loan:
|
(i)
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the loan number;
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(ii)
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the Mortgage Rate in effect as of
the Cut-off Date;
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(iii)
|
the Servicer (or the Company, if it
services the Mortgage Loan), the Servicing Fee Rate and
the Master Servicing Fee Rate;
|
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(iv)
|
the LPMI Fee, if
applicable;
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(v)
|
the Net Mortgage Rate in effect as
of the Cut-off Date;
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(vi)
|
the maturity date;
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(vii)
|
the original principal
balance;
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(viii)
|
the Cut-off Date Principal
Balance;
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(ix)
|
the original term;
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(x)
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the remaining term;
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(xi)
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the property type; and
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(xii)
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the MIN with respect to each
Mortgage Loan.
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Such schedule shall also set forth
the aggregate Cut-off Date Principal Balance for all of the
Mortgage Loans.
Mortgage Note
: The original executed note or
other evidence of indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note.
Mortgaged Property
: The underlying property securing a
Mortgage Loan.
Mortgagor : The obligors on a Mortgage Note.
Net Interest
Shortfalls : Shall mean
Interest Shortfalls net of payments by the Company, the Servicer or
the Master Servicer in respect of Compensating Interest.
Net Monthly Excess
Cashflow : With respect
to any Distribution Date, the sum of (a) any Overcollateralization
Release Amount for such Distribution Date and (b) the Remaining
Excess Spread for such Distribution Date.
Net Mortgage Rate
: As to each Mortgage Loan, and at
any time, the per annum rate equal to the related Mortgage Rate
less the sum of (i) the Servicing Fee Rate, (ii) the Master
Servicing Fee Rate and (iii) the rate at which the LPMI Fee is
calculated, if any.
Net WAC Rate Carryover
Amount : With respect to
each Class of Offered Certificates and any Distribution Date, an
amount equal to the sum of (i) the excess, if any, of (x) the
amount of interest such Class would have been entitled to receive
on such Distribution Date if the Pass-Through Rate applicable to
such Class would not have been limited by the applicable Interest
Rate Cap on such Distribution Date over (y) the amount of interest
paid to such Class on such Distribution Date plus (ii) the related
Net WAC Rate Carryover Amount for the previous Distribution Date
for such Class not previously distributed together with interest
thereon at a rate equal to the Pass-Through Rate (without regard to
the related Interest Rate Cap) for such Class for the most recently
ended Interest Accrual Period.
Net WAC Reserve Fund
: Shall mean the separate trust
account created and maintained by the Securities Administrator
pursuant to Section 6.08 hereof.
Net WAC Reserve Fund
Deposit : With respect to
the Net WAC Reserve Fund, an amount equal to $5,000, which the
Depositor shall deposit initially into the Net WAC Reserve Fund
pursuant to Section 6.08 hereof.
Non-Book-Entry
Certificate : Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable Advance
: Any portion of an Advance
previously made or proposed to be made by the Company or the Master
Servicer pursuant to this Agreement or the related Servicer
pursuant to the related Servicing Agreement, that, in the good
faith judgment of the Company, the Master Servicer or the related
Servicer, will not or, in the case of a proposed advance, would
not, be ultimately recoverable by it from the related Mortgagor,
related Liquidation Proceeds, Insurance Proceeds or
otherwise.
Offered Certificates
: Any of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2 and Class B-3 Certificates.
Officer’s
Certificate : A
certificate (i) signed by the Chairman of the Board, the Vice
Chairman of the Board, the President, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the assistant treasurers or assistant
secretaries of the Depositor or the Master Servicer (or any other
officer customarily performing functions similar to those performed
by any of the above designated officers and also to whom, with
respect to a particular matter, such matter is referred because of
such officer’s knowledge of and familiarity with a particular
subject) or (ii), if provided for in this Agreement, signed by a
Servicing Officer, as the case may be, and delivered to the
Depositor, the Seller, the Securities Administrator, the Master
Servicer and/or the Trustee, as the case may be, as required by
this Agreement.
One-Month LIBOR
: With respect to any Interest
Accrual Period and the LIBOR Certificates, the rate determined by
the Securities Administrator on the related Interest Determination
Date on the basis of the rate for U.S. dollar deposits for one
month that appears on Telerate Screen Page 3750 as of 11:00 a.m.
(London time) on such Interest Determination Date. If such rate
does not appear on such page (or such other page as may replace
that page on that service, or if such service is no longer offered,
such other service for displaying One-Month LIBOR or comparable
rates as may be reasonably selected by the Securities
Administrator), One-Month LIBOR for the applicable Interest Accrual
Period will be the Reference Bank Rate. If no such quotations can
be obtained by the Securities Administrator and no Reference Bank
Rate is available, One-Month LIBOR shall be One-Month LIBOR
applicable to the preceding Interest Accrual Period. The
establishment of One-Month LIBOR on each Interest Determination
Date by the Securities Administrator and the Securities
Administrator’s calculation of the rate of interest
applicable to the LIBOR Certificates for the related Interest
Accrual Period shall, in the absence of manifest error, be final
and binding. One-Month LIBOR for the Class A-1 Certificates and
Class A-2 Certificates and the first Interest Accrual Period will
be approximately 4.19% per annum. One-Month LIBOR for the Class A-3
Certificates and Class A-4 Certificates and the first Interest
Accrual Period will be approximately 4.09% per annum. One-Month
LIBOR for the other LIBOR Certificates and any Interest Accrual
Period shall be calculated as described above.
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for the Seller, the Depositor, the Company or the
Master Servicer, reasonably acceptable to each addressee of such
opinion; provided that with respect to Section 2.05, 8.05, 8.07 or
12.01, or the interpretation or application of the REMIC
Provisions, such counsel must (i) in fact be independent of the
Seller, Depositor, the Company and the Master Servicer, (ii) not
have any direct financial interest in the Seller, Depositor, the
Company or the Master Servicer or in any affiliate of either, and
(iii) not be connected with the Seller, Depositor, the Company or
the Master Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar
functions.
Optional Termination
: The termination of the Trust Fund
created hereunder as a result of the purchase of all of the
Mortgage Loans and any REO Property pursuant to the last sentence
of Section 11.01 hereof.
Optional Termination
Date : The first
Distribution Date on which the Trust Fund may be terminated at the
option of the Majority Class C Certificateholder as described under
Section 11.01.
Original Value
: The value of the property
underlying a Mortgage Loan based, in the case of the purchase of
the underlying Mortgaged Property, on the lower of an appraisal or
the sales price of such property or, in the case of a refinancing,
on an appraisal.
Originator
: With respect to each Mortgage
Loan, shall mean the originator set forth in the Mortgage Loan
Schedule for such Mortgage Loan.
OTS : The Office of Thrift Supervision.
Outstanding
: With respect to the Certificates
as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered
to the Securities Administrator for cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have
been executed and delivered by the Securities Administrator
pursuant to this Agreement.
Outstanding Mortgage
Loan : As of any date of
determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal
Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
Overcollateralization Increase
Amount : As of any
Distribution Date, the lesser of (a) the excess, if any, of (i) the
Overcollateralization Target Amount over (ii) the
Overcollateralized Amount on such Distribution Date (after taking
into account payments to the Offered Certificates of the Basic
Principal Distribution Amount on such Distribution Date) and (b)
the Excess Spread for such Distribution Date.
Overcollateralization Release
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of
(i) the Overcollateralized Amount for such Distribution Date
(assuming that 100% of the Principal Remittance Amount is applied
as a principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date
(with the amount pursuant to clause (y) deemed to be $0 if the
Overcollateralized Amount is less than or equal to the
Overcollateralization Target Amount on that Distribution
Date).
Overcollateralization Target
Amount : With respect to
any Distribution Date, $3,471,332.88.
Overcollateralized
Amount : With respect to
any Distribution Date, is the excess, if any, of (a) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period over (b) the aggregate Certificate
Principal Balance of the Class A, Class M and Class B Certificates
(other than the Class A-2 Certificates) on such Distribution Date
(after taking into account the payment of principal other than any
Extra Principal Distribution Amount on such
Certificates).
Ownership Interest
: As to any Certificate, any
ownership interest in such Certificate including any interest in
such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate
: With respect to each Class of
Certificates (other than the Class C Certificates), the Class A-1
Pass-Through Rate, Class A-2 Pass-Through Rate, Class A-3
Pass-Through Rate, Class A-4 Pass-Through Rate, Class A-5
Pass-Through Rate, Class M-1 Pass-Through Rate, Class M-2
Pass-Through Rate, Class M-3 Pass-Through Rate, Class B-1
Pass-Through Rate, Class B-2 Pass-Through Rate, Class B-3
Pass-Through Rate or Class B-4 Pass-Through Rate, as
applicable.
With respect to the Class C
Certificate, the Class C Certificate shall not have a Pass-Through
Rate, but the Monthly Interest Distribuable Amount for such
Certificate and each Distribution Date shall be an amount equal to
100% of the amounts distributable to REMIC II Regular Interest C
for such Distribution Date.
Paying Agent
: Wells Fargo Bank, National
Association, in its capacity as paying agent, and its successors
and assigns.
Percentage Interest
: With respect to any Certificate of
a specified Class, the Percentage Interest set forth on the face
thereof or the percentage obtained by dividing the Denomination of
such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Permitted Investments
: At any time, any one or more of
the following obligations and securities:
(i) obligations
of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United
States;
(ii) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by each Rating Agency;
(iii) commercial
or finance company paper which is then receiving the highest
commercial or finance company paper rating of each Rating Agency,
or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances
issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and
subject to supervision and examination by federal and/or state
banking authorities (including the Trustee in its commercial
banking capacity), provided that the commercial paper and/or long
term unsecured debt obligations of such depository institution or
trust company are then rated one of the two highest long-term and
the highest short-term ratings of each such Rating Agency for such
securities, or such lower ratings as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by any Rating Agency;
(v) demand
or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company or
other corporation containing, at the time of the issuance of such
agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by any such Rating Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
clause (iv) above;
(viii) securities
(other than stripped bonds, stripped coupons or instruments sold at
a purchase price in excess of 115% of the face amount thereof)
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state
thereof which, at the time of such investment, have one of the two
highest long term ratings of each Rating Agency (except if the
Rating Agency is Moody’s, such rating shall be the highest
commercial paper rating of Moody’s for any such securities),
or such lower rating as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by any
Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency;
(ix) interests
in any money market fund (including any such fund managed or
advised by the Trustee or Master Servicer or any affiliate thereof)
which at the date of acquisition of the interests in such fund and
throughout the time such interests are held in such fund has the
highest applicable long term rating by each Rating Agency or such
lower rating as will not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by each Rating
Agency;
(x) short
term investment funds sponsored by any trust company or banking
association incorporated under the laws of the United States or any
state thereof (including any such fund managed or advised by the
Trustee or any affiliate thereof) which on the date of acquisition
has been rated by each Rating Agency in their respective highest
applicable rating category or such lower rating as will not result
in the downgrading or withdrawal of the ratings then assigned to
the Certificates by each Rating Agency; and
(xi) such
other investments having a specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by
a signed writing delivered by each Rating Agency;
provided, that no such instrument
shall be a Permitted Investment if such instrument (i) evidences
the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further
that no such instrument shall be a Permitted Investment (A) if such
instrument evidences principal and interest payments derived from
obligations underlying such instrument and the
interest payments with respect to
such instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations, or (B)
if it may be redeemed at a price below the purchase price (the
foregoing clause (B) not to apply to investments in units of money
market funds pursuant to clause (vi) above); provided further that
no amount beneficially owned by any REMIC may be invested in
investments (other than money market funds) treated as equity
interests for federal income tax purposes, unless the Master
Servicer shall receive an Opinion of Counsel, at the expense of the
Master Servicer, to the effect that such investment will not
adversely affect the status of any such REMIC as a REMIC under the
Code or result in imposition of a tax on any such REMIC. Permitted
Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
Permitted Transferee
: Any Person (x) other than (i) the
United States, any State or political subdivision thereof, any
possession of the United States or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International
Organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) that is exempt
from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in Section 860E(c)(1)
of the Code) with respect to any Residual Certificate, (iv) rural
electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code or (v) an electing large partnership
within the meaning of Section 775(a) of the Code, (y) that is a
citizen or resident of the United States, a corporation,
partnership (other than a partnership that has any direct or
indirect foreign partners) or other entity (treated as a
corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, an estate whose income
from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of
its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is
able to exercise primary supervision over the administration of the
trust and one or more United States persons have authority to
control all substantial decisions of the trust or if it has a valid
election in effect under applicable U.S. Treasury regulations to be
treated as a United States person and (z) other than any other
Person so designated by the Trustee based upon an Opinion of
Counsel addressed to the Trustee (which shall not be an expense of
the Trustee) that states that the Transfer of an Ownership Interest
in a Residual Certificate to such Person may cause REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are Outstanding. The terms “United
States,” “State” and “International
Organization” shall have the meanings set forth in Section
7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Freddie
Mac, a majority of its board of directors is not selected by such
government unit.
Person : Any individual, corporation, partnership,
joint venture, association, joint- stock company, limited liability
company, trust, unincorporated organization or government, or any
agency or political subdivision thereof.
PHH : PHH Mortgage Corporation, and any successor
thereto.
PHH Assignment
Agreement : The
Assignment, Assumption and Recognition Agreement, dated as of
November 30, 2005, by and among the Seller, PHH, Bishop’s
Gate and the Trustee evidencing the assignment of the PHH Servicing
Agreement to the Trust.
PHH Servicing
Agreement : The Purchase,
Warranties and Servicing Agreement, dated as of October 23, 2001,
by and among the Seller, PHH, as successor to Cendant Mortgage
Corporation, and Bishop’s Gate, as modified by the PHH
Assignment Agreement.
Prepayment Assumption
: The applicable rate of prepayment,
as described in the Prospectus Supplement relating to each Class of
Offered Certificates.
Prepayment Charge
: Any prepayment premium, penalty or
charge payable by a Mortgagor in connection with any Principal
Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note.
Prepayment Charge Waiver
Amount : Any amount paid
by the Company or related Servicer to the Master Servicer in
respect of waived Prepayment Charges pursuant to Section
5.01(a).
Prepayment Interest
Excess : With respect to
any Distribution Date, for each EMC Mortgage Loan that was the
subject of a Principal Prepayment in full or in part during the
portion of the related Prepayment Period occurring between the
first day of the calendar month in which such Distribution Date
occurs and the Determination Date of the calendar month in which
such Distribution Date occurs, an amount equal to interest (to the
extent received) at the applicable Net Mortgage Rate on the amount
of such Principal Prepayment for the number of days commencing on
the first day of the calendar month in which such Distribution Date
occurs and ending on the last date through which interest is
collected from the related Mortgagor.
Prepayment Interest
Shortfall : With respect
to any Distribution Date, for each Mortgage Loan that was the
subject of a partial Principal Prepayment, a Principal Prepayment
in full, or that became a Liquidated Loan during the related
Prepayment Period, (other than a Principal Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to Section
2.02, 2.03, 4.20 or 11.01 hereof), the amount, if any, by which (i)
one month’s interest at the applicable Net Mortgage Rate on
the Stated Principal Balance of such Mortgage Loan immediately
prior to such prepayment (or liquidation), or in the case of a
partial Principal Prepayment, on the amount of such prepayment (or
liquidation proceeds) exceeds (ii) the amount of interest paid or
collected in connection with such Principal Prepayment or such
liquidation proceeds less the sum of (a) the related Servicing Fee,
(b) the Master Servicing Fee and (c) the LPMI Fee, if
any.
Prepayment Period
: As to any Distribution Date and
(i) each EMC Mortgage Loan, the period commencing on the 16
th day of the month prior to the month in which the
related Distribution Date occurs and ending on the 15 th
day of the month in which such Distribution Date occurs and (ii)
any other Mortgage Loan, the period set forth in the related
Servicing Agreement.
Primary Mortgage Insurance
Policy : Any primary
mortgage guaranty insurance policy issued in connection with a
Mortgage Loan which provides compensation to a Mortgage
Note
holder in the event of default by
the obligor under such Mortgage Note or the related security
instrument, if any or any replacement policy therefor through the
related Interest Accrual Period for such Class relating to a
Distribution Date.
Principal Distribution
Amount : With respect to
each Distribution Date, the sum of (a) the Basic Principal
Distribution Amount for such Distribution Date and (b) any Extra
Principal Distribution Amount for such Distribution
Date.
Principal Funds
: With respect to any Distribution
Date, (i) the sum, without duplication, of (a) all scheduled
principal collected on the Mortgage Loans during the related Due
Period, (b) all Advances relating to principal made with respect to
the Mortgage Loans on or prior to the Distribution Account Deposit
Date, (c) Principal Prepayments with respect to the Mortgage Loans
exclusive of Prepayment Charges or penalties collected during the
related Prepayment Period, (d) the Stated Principal Balance of each
Mortgage Loan that was repurchased by the Seller pursuant to
Sections 2.02 or 2.03 or by EMC pursuant to Section 4.20, (e) the
aggregate of all Substitution Adjustment Amounts with respect to
the Mortgage Loans for the related Determination Date in connection
with the substitution of Mortgage Loans pursuant to Section
2.03(c), (e) all Liquidation Proceeds and Subsequent Recoveries
with respect to the Mortgage Loans collected during the related
Prepayment Period (to the extent such Liquidation Proceeds and
Subsequent Recoveries relate to principal) and remitted by the
Company or the related Servicer to the Distribution Account
pursuant to this Agreement or the related Servicing Agreement and
(f) amounts in respect of principal paid by the Majority Class C
Certificateholder pursuant to Section 11.01, minus (ii) all amounts
required to be reimbursed pursuant to Sections 5.02, 5.05, 5.07 and
5.09 or as otherwise set forth in this Agreement.
Principal Remittance
Amount : With respect to
each Distribution Date, the sum of the amounts listed in clauses
(a) through (e) of the definition of Principal Funds.
Principal Prepayment
: Any Mortgagor payment or other
recovery of (or proceeds with respect to) principal on a Mortgage
Loan (including loans purchased or repurchased under Sections 2.02,
2.03, 4.20 and 11.01 hereof) that is received in advance of its
scheduled Due Date and is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment.
Partial Principal Prepayments shall be applied by the Company or
the related Servicer, as appropriate, in accordance with the terms
of the related Mortgage Note.
Private Certificates
: Any of the Class B-4, Class P,
Class C and Residual Certificates.
Prospectus Supplement
: The Prospectus Supplement dated
November 28, 2005 relating to the public offering of the Offered
Certificates.
Protected Account
: Each account established and
maintained by the Company with respect to receipts on the Mortgage
Loans and REO Property in accordance with Section 5.01 hereof or by
the related Servicer in accordance with the related Servicing
Agreement.
PUD : A Planned Unit Development.
Purchase Price
: With respect to any Mortgage Loan
required to be repurchased by the Seller pursuant to Section 2.02
or 2.03 hereof, an amount equal to the sum of (i) 100% of the
outstanding principal balance of the Mortgage Loan as of the date
of such purchase plus (ii) accrued interest thereon at the
applicable Mortgage Rate through the first day of the month in
which the Purchase Price is to be distributed to
Certificateholders, reduced by any portion of the Servicing Fee,
Servicing Advances and Advances payable to the purchaser of the
Mortgage Loan plus and (iii) any costs and damages (if any)
incurred by the Trust in connection with any violation of such
Mortgage Loan of any predatory lending laws.
QIB : A Qualified Institutional Buyer as defined in
Rule 144A promulgated under the Securities Act.
Rating Agency
: Each of Moody’s and S&P.
If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally
recognized statistical rating organization, or other comparable
Person, designated by the Depositor, notice of which designation
shall be given to the Trustee. References herein to a given rating
category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss
: With respect to each Mortgage Loan
as to which a Final Recovery Determination has been made, an amount
(not less than zero) equal to (i) the unpaid principal balance of
such Mortgage Loan as of the commencement of the calendar month in
which the Final Recovery Determination was made, plus (ii) accrued
interest from the Due Date as to which interest was last paid by
the Mortgagor through the end of the calendar month in which such
Final Recovery Determination was made, calculated in the case of
each calendar month during such period (A) at an annual rate equal
to the annual rate at which interest was then accruing on such
Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan as of the close of business
on the Distribution Date during such calendar month, minus (v) the
proceeds, if any, received in respect of such Mortgage Loan during
the calendar month in which such Final Recovery Determination was
made, net of amounts that are payable therefrom to the Company
pursuant to this Agreement or the applicable Servicer pursuant to
the related Servicing Agreement. In addition, to the extent the
Master Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such recoveries are
distributed to any Class of Subordinate Certificates or applied to
increase Excess Spread on any Distribution Date.
With respect to any REO Property as
to which a Final Recovery Determination has been made, an amount
(not less than zero) equal to (i) the unpaid principal balance of
the related Mortgage Loan as of the date of acquisition of such REO
Property on behalf of REMIC I, plus (ii) accrued interest from the
Due Date as to which interest was last paid by the Mortgagor in
respect of the related Mortgage Loan through the end of the
calendar month immediately preceding the calendar month in which
such REO Property was acquired, calculated in the case of each
calendar month during such period (A) at an annual rate equal to
the annual rate at which interest was then accruing on the related
Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of the related Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, plus
(iii) 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 Final
Recovery
Determination was made, minus (iv)
the aggregate of all unreimbursed Advances and Servicing
Advances.
With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan
which has become the subject of a Debt Service Reduction, the
portion, if any, of the reduction in each affected Monthly Payment
attributable to a reduction in the Mortgage Rate imposed by a court
of competent jurisdiction. Each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Monthly
Payment.
In addition, to the extent the
Master Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
Record Date
: With respect to the Class A-5,
Class C, Class P and Class R Certificates and any Distribution
Date, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs. With
respect to any Distribution Date and the Class A-1, Class A-2,
Class A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates, so long as such
Certificates are Book-Entry Certificates, the Business Day
preceding such Distribution Date, and otherwise, the close of
business on the last Business Day of the month preceding the month
in which such Distribution Date occurs.
Reference Banks
: Shall mean leading banks selected
by the Securities Administrator and engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i)
with an established place of business in London, (ii) which have
been designated as such by the Securities Administrator and (iii)
which are not controlling, controlled by, or under common control
with, the Depositor, the Seller or the Master Servicer.
Reference Bank Rate
: With respect to any Interest
Accrual Period shall mean the arithmetic mean, rounded upwards, if
necessary, to the nearest whole multiple of 0.03125%, of the
offered rates for United States dollar deposits for one month that
are quoted by the Reference Banks as of 11:00 a.m., New York City
time, on the related Interest Determination Date to prime banks in
the London interbank market for a period of one month in an amount
approximately equal to the aggregate Certificate Principal Balance
of the Class A (other than the Class A-5 Certificates), Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates for such Interest Accrual Period, provided that at
least two such Reference Banks provide such rate. If fewer than two
offered rates appear, the Reference Bank Rate will be the
arithmetic mean, rounded upwards, if necessary, to the nearest
whole multiple of 0.03125%, of the rates quoted by one or more
major banks in New York City, selected by the Securities
Administrator, as of 11:00 a.m., New York City time, on such date
for loans in United States dollars to leading European banks for a
period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of
the Class A (other than the Class
A-5 Certificates), Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates for such Interest
Accrual Period.
Regular Certificate
: Any Certificate other than a
Residual Certificate.
Regular Interest
: A “regular interest”
in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
Relief Act
: The Servicemembers Civil Relief
Act, as amended or any similar state or local law.
Remaining Excess
Spread : With respect to
any Distribution Date is the Excess Spread less the sum of (i) any
Overcollateralization Increase Amount for such Distribution Date
and (ii) any unpaid Class A-5 Reimbursement Amount related to
interest or principal draws not previously paid to the Class A-5
Insurer other than pursuant to items (1) and (9) of clause
third under Section 6.04(a).
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
REMIC I : The segregated pool of assets described in
Section 6.07(a).
REMIC I Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) the Uncertificated REMIC I
Pass-Through Rate for REMIC I Regular Interest AA minus the Marker
Rate, divided by (b) 12.
REMIC I Interests
: The REMIC I Regular Interests and
the Class R-1 Certificates.
REMIC I Overcollateralization
Amount : With respect to
any date of determination, (i) 1% of the aggregate Uncertificated
Principal Balance of the REMIC I Regular Interests (other than
REMIC I Regular Interest P) minus (ii) the aggregate Uncertificated
Principal Balance of REMIC I Regular Interest A-1, REMIC I Regular
Interest A-3, REMIC I Regular Interest A-5, REMIC I Regular
Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3 and REMIC I Regular
Interest B-4, in each case as of such date of
determination.
REMIC I Overcollateralization
Target Amount : 1% of the
Overcollateralization Target Amount.
REMIC I Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) 1 minus a fraction, the
numerator of which is two (2) times the aggregate Uncertificated
Principal Balance of REMIC I Regular Interest A-1, REMIC I Regular
Interest A-3, REMIC I Regular Interest A-5, REMIC I Regular
Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3 and REMIC I Regular
Interest B-4, and the denominator of which is the aggregate
Uncertificated Principal Balance of REMIC I Regular Interest A-1,
REMIC I Regular Interest A-3, REMIC I
Regular Interest A-5, REMIC I
Regular Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3, REMIC I Regular
Interest B-4 and REMIC I Regular Interest ZZ.
REMIC I Regular Interest ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) accrued interest at the Uncertificated REMIC I
Pass-Through Rate applicable to REMIC I Regular Interest ZZ for
such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest ZZ minus the REMIC I
Overcollateralization Amount, in each case for such Distribution
Date, over (ii) the Uncertificated Accrued Interest on REMIC I
Regular Interest A-1, REMIC I Regular Interest A-3, REMIC I Regular
Interest A-5, REMIC I Regular Interest M-1, REMIC I Regular
Interest M-2, REMIC I Regular Interest M-3, REMIC I Regular
Interest B-1, REMIC I Regular Interest B-2, REMIC I Regular
Interest B-3 and REMIC I Regular Interest B-4 for such Distribution
Date, with the rate on each such REMIC I Regular Interest subject
to a cap equal to the Uncertificated REMIC II Pass-Through Rate for
the Corresponding Interest; provided, however, that for this
purpose, the calculation of the Undercertificated REMIC I
Pass-Through Rate and the related cap with respect to REMIC I
Regular Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3 and REMIC I Regular
Interest B-4 shall be multiplied by a fraction, the numerator of
which is the actual number of days in the Interest Accrual Period
and the denominator of which is 30.
REMIC I Regular
Interests : REMIC I
Regular Interest AA, REMIC I Regular Interest A-1, REMIC I Regular
Interest A-3, REMIC I Regular Interest A-5, REMIC I Regular
Interest M-1, REMIC I Regular Interest M-2, REMIC I Regular
Interest M-3, REMIC I Regular Interest B-1, REMIC I Regular
Interest B-2, REMIC I Regular Interest B-3, REMIC I Regular
Interest B-4, REMIC I Regular Interest ZZ and REMIC I Regular
Interest P.
REMIC I Regular Interest
AA: One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest AA shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
A-1 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest A shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
A-3 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest A-3 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement
hereto.
REMIC I Regular Interest
A-5 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest A-5 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
B-1 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest B-1 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
B-2 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest B-2 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
B-3 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest B-3 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
B-4 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest B-4 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
M-1 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest M-1 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
M-2 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest M-2 shall accrue interest at the related
Uncertificated REMIC I Pass-Through
Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
M-3 : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest M-3 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
P : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest P will not accrue interest and shall be entitled
to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I Regular Interest
ZZ : One of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I
Regular Interest ZZ shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II : The segregated pool of assets described in the
Preliminary Statement consisting of the REMIC I Regular
Interests.
REMIC II Interests
: The REMIC II Regular Interests and
the Class R-2 Certificates.
REMIC II Regular
Interests : REMIC II
Regular Interest A-1, REMIC II Regular Interest A-3, REMIC II
Regular Interest A-5, REMIC II Regular Interest M-1, REMIC II
Regular Interest M-2, REMIC II Regular Interest M-3, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II
Regular Interest B-3, REMIC II Regular Interest B-4, REMIC II
Regular Interest C and REMIC II Regular Interest P.
REMIC II Regular Interest
A-1 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest A-1 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
A-3 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest A-3 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
A-5 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest A-5 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
B-1 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest B-1 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
B-2 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest B-2 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
B-3 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest B-3 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
B-4 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest B-4 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
C : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest C shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time and shall not be entitled to distributions of
principal.
REMIC II Regular Interest C
Distribution Amount :
With respect to any Distribution Date, the Uncertificated Accrued
Interest for REMIC II Regular Interest C for such Distribution
Date; provided, however, that on and after the Distribution Date on
which the Certificate Principal Balance of the Offered Certificates
and Class B-4 Certificates has been reduced to zero, the REMIC II
Regular Interest C Distribution Amount shall include the
Overcollateralized Amount.
REMIC II Regular Interest
M-1 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest M-1 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
M-2 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest M-2 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
M-3 : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest M-3 shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II Regular Interest
P : One of the separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC
II Regular Interest P will not accrue interest and shall be
entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
REMIC III : The segregated pool of assets described in the
Preliminary Statement consisting of the REMIC II Regular
Interests.
REMIC III Certificates
: The Regular Certificates and the
Class R-3 Certificates.
REMIC Opinion
: Shall mean an Opinion of Counsel
to the effect that the proposed action will not have an adverse
affect on any REMIC created hereunder.
REMIC Provisions
: Provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of the Code, and related
provisions, and proposed, temporary and final regulations and
published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time as
well as provisions of applicable state laws.
REMIC Regular Interest
: Any of the REMIC I Regular
Interests, the REMIC II Regular Interests or the Regular Interests
the ownership of which is represented by the Class A-1, Class A-2,
Class A-3 or Class A-4 Certificates.
Remittance Date
: Shall mean (i) with respect to the
Company, the Business Day immediately preceding the Distribution
Account Deposit Date and (ii) with respect to the related Servicer,
the date specified in the related Servicing Agreement.
Remittance Report
: As defined in Section
6.04(d).
REO Imputed Interest
: As to any REO Property, for any
calendar month during which such REO Property was at any time part
of REMIC I, one month’s interest at the applicable Net
Mortgage Rate on the Stated 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
Distribution Date in such calendar month.
REO Property
: A Mortgaged Property acquired by
the Company or the related Servicer through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Replacement Mortgage
Loan : A Mortgage Loan or
Mortgage Loans in the aggregate substituted by the Seller for a
Deleted Mortgage Loan, which must, on the date of such
substitution, as confirmed in a Request for Release, (i) have a
Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in
excess of, and not less than 90% of, the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) have a fixed Mortgage Rate not
less than or more than 1% per annum higher than the Mortgage Rate
of the Deleted Mortgage Loan; (iii) have the same or higher credit
quality characteristics than that of the Deleted Mortgage Loan;
(iv) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan; (v) have a remaining term to maturity no greater
than (and not more than one year less than) that of the Deleted
Mortgage Loan; (vi) not permit conversion of the Mortgage Rate from
a fixed rate to a variable rate; (vii) have the same lien priority
as the Deleted Mortgage Loan; (viii) constitute the same occupancy
type as the Deleted Mortgage Loan or be owner occupied; and (ix)
comply with each representation and warranty set forth in Section
2.03 hereof.
Repurchase Price
: With respect to each Mortgage
Loan, a price equal to (i) the outstanding principal balance of
such Mortgage Loan, plus (ii) interest on such outstanding
principal balance at the Mortgage Rate (net of the Servicing Fee
Rate) from the last date through which interest has been paid to
the end of the month of repurchase, less (iii) amounts advanced by
the Company or the related Servicer in respect of such repurchased
Mortgage Loan which are being held in the Master Servicer
Collection Account for remittance to the Trustee (or the Securities
Administrator on its behalf) plus (iv) any costs and damages (if
any) incurred by the Trust in connection with any violation of such
Mortgage Loan of any anti-predatory lending laws.
Request for Release
: The Request for Release to be
submitted by the Seller, the Company, the related Servicer or the
Master Servicer to the Custodian substantially in the form of
Exhibit G. Each Request for Release furnished to the Custodian by
the Seller, the Company, the related Servicer or the Master
Servicer shall be in duplicate and shall be executed by an officer
of such Person or a Servicing Officer (or, if furnished
electronically to the Custodian, shall be deemed to have been sent
and executed by an officer of such Person or a Servicing Officer)
of the Company or the related Servicer, as applicable.
Required Insurance
Policy : With respect to
any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement or the related
Servicing Agreement.
Residual Certificates
: Any of the Class R-1, Class R-2
and Class R-3 Certificates, each evidencing the sole class of
Residual Interests in the related REMIC.
Residual Interest
: The sole class of “residual
interests” in a REMIC within the meaning of Section
860G(a)(2) of the Code.
Responsible Officer
: With respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, or any Trust Officer with specific
responsibility for the transactions contemplated hereby, any other
officer customarily performing functions similar to those performed
by any of the above designated officers or other officers of the
Trustee specified by the Trustee, as to whom, with respect to a
particular matter, such matter is referred because of such
officer’s knowledge of and familiarity with the particular
subject.
S&P : Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc.
Scheduled Payment
: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or
interest on such Mortgage Loan.
Securities Act
: The Securities Act of 1933, as
amended.
Securities
Administrator : Wells
Fargo Bank, National Association, in its capacity as securities
administrator hereunder, and its successors and assigns.
Seller : EMC Mortgage Corporation, a Delaware
corporation, and its successors and assigns, in its capacity as
seller of the Mortgage Loans to the Depositor.
Senior Certificates
: Any of the Class A-1, Class A-2,
Class A-3, Class A-4 and Class A-5 Certificates.
Servicer : Shall mean any of GreenPoint, PHH or
SunTrust.
Servicing Advances
: All customary, reasonable and
necessary “out of pocket” costs and expenses (including
reasonable legal fees) incurred in the performance by the Company
or the related Servicer of its servicing obligations hereunder or
under the related Servicing Agreement, including, but not limited
to, the cost of (i) the preservation, restoration and protection of
a Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, and including any expenses incurred in
relation to any such proceedings that result from the Mortgage Loan
being registered in the MERS® System, (iii) the management and
liquidation of any REO Property (including, without limitation,
realtor’s commissions) and (iv) compliance with any
obligations under Section 3.07 hereof to cause insurance to be
maintained.
Servicing Agreement
: Shall mean either the GreenPoint
Servicing Agreement, PHH Servicing Agreement or SunTrust Servicing
Agreement.
Servicing Fee
: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Servicing Fee
Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the last day of the related Due Period.
Servicing Fee Rate
: 0.250% per annum.
Servicing Modification
: With respect to any Mortgage Loan
that is in default or, in the reasonable judgment of the Company or
the related Servicer, as to which default is reasonably
foreseeable, any modification which is effected by the Company or
the related Servicer in accordance with the terms of this Agreement
or the related Servicing Agreement which results in any change in
the outstanding Stated Principal Balance, any change in the
Mortgage Rate or any extension of the term of such Mortgage
Loan.
Servicing Officer
: Any officer of the Company or the
related Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans (i) in the case
of the Company, whose name and facsimile signature appear on a list
of servicing officers furnished to the Trustee and the Class A-5
Insurer by the Company on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended and (ii)
in the case of the related Servicer, as to which evidence
reasonably acceptable to the Trustee, as applicable, of due
authorization, by such party has been furnished from time to time
to the Trustee.
Startup Day
: The Startup Day for each REMIC
formed hereunder shall be the Closing Date.
Stated Principal
Balance : With respect to
any Mortgage Loan or related REO Property and any Distribution
Date, the Cut-off Date Principal Balance thereof minus the sum of
(i) the principal portion of the Scheduled Payments due with
respect to such Mortgage Loan during each Due Period ending prior
to such Distribution Date (and irrespective of any delinquency in
their payment), (ii) all Principal Prepayments with respect to such
Mortgage Loan received prior to or during the related Prepayment
Period, and all Liquidation Proceeds to the extent applied by the
Company or the related Servicer as recoveries of principal in
accordance with Section 3.09 or the related Servicing Agreement
with respect to such Mortgage Loan, that were received by the
Company or the related Servicer as of the close of business on the
last day of the Prepayment Period related to such Distribution Date
and (iii) any Realized Losses on such Mortgage Loan incurred during
the related Prepayment Period. The Stated Principal Balance of a
Liquidated Loan equals zero.
Subordinate
Certificates : Any of the
Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3
and Class B-4 Certificates.
Subsequent Recoveries
: As of any Distribution Date,
amounts received by the Master Servicer during the related Due
Period or surplus amounts held by the Master Servicer to cover
estimated expenses (including, but not limited to, recoveries in
respect of the representations and warranties made by the Seller
pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a Liquidated Mortgage Loan or disposition of an REO
Property prior to the related Prepayment Period that resulted in a
Realized Loss, after the liquidation or disposition of such
Mortgage Loan.
Subservicing Agreement
: Any agreement entered into between
the Company and a subservicer with respect to the subservicing of
any Mortgage Loan hereunder by such subservicer.
Substitution Adjustment
Amount : The meaning
ascribed to such term pursuant to Section 2.03(c).
Successor Master
Servicer : The meaning
ascribed to such term pursuant to Section 9.01.
SunTrust : SunTrust Mortgage, Inc. and any successor
thereto.
SunTrust Assignment
Agreement : The
Assignment, Assumption and Recognition Agreement, dated as of
November 30, 2005, by and among the Seller, SunTrust and the
Trustee evidencing the assignment of the SunTrust Servicing
Agreement to the Trust.
SunTrust Servicing
Agreement : The Purchase
Warranties and Servicing Agreement, dated as of January 1, 2002, as
amended, between the Seller and SunTrust.
Tax Matters Person
: The person designated as
“tax matters person” in the manner provided under
Treasury Regulation Sections 1.860F-4(d) and 301.6231(a)(7)-1T. The
holder of the greatest Percentage Interest in a Class of Residual
Certificates shall be the Tax Matters Person for the related REMIC.
The Securities Administrator, or any successor thereto or assignee
thereof, shall serve as tax administrator hereunder and as agent
for the related Tax Matters Person.
Transaction Documents
: This Agreement, the Mortgage Loan
Purchase Agreement, the Custodial Agreement, the Class A-5
Insurance Agreement, the Indemnification Agreement (as defined in
the Class A-5 Insurance Agreement) and the Underwriting
Agreement.
Transfer Affidavit
: As defined in Section
7.02(c).
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Certificate.
Trust Fund
: The corpus of the trust created
hereunder consisting of (i) the Mortgage Loans and all interest
accruing and principal due with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date
Principal Balance thereof; (ii) the Class P Certificate Account,
the Net WAC Reserve Fund, the Class A-1/A-2 Net WAC Reserve
Account, the Class A-3/A-4 Net WAC Reserve Account, the
Distribution Account, the Master Servicer Collection Account
maintained by the Master Servicer and the Protected Accounts
maintained by the Company and the Servicers and all amounts
deposited therein pursuant to the applicable provisions of this
Agreement and the Servicing Agreements; (iii) property that secured
a Mortgage Loan and has been acquired by foreclosure, deed in lieu
of foreclosure or otherwise; (iv) the mortgagee’s rights
under the Insurance Policies with respect to the Mortgage Loans;
(v) the Servicing Agreements and the Assignment Agreements; (vi)
the rights under the Mortgage Loan Purchase Agreement; (vii) for
the benefit of the Class A-5 Certificate only, the Class A-5
Policy; (viii) the rights under the Yield Maintenance Agreement;
and (ix) all proceeds of the foregoing, including proceeds of
conversion, voluntary or involuntary, of any of the foregoing into
cash or other liquid property. The Net WAC Reserve Fund, the Class
A-1/A-2 Net
WAC Reserve Account, the Class
A-3/A-4 Net WAC Reserve Account and the Yield Maintenance Agreement
shall constitute an asset of the Trust Fund but will not be
included in REMIC I, REMIC II or REMIC III.
Trustee : U.S. Bank National Association, a national
banking association, not in its individual capacity, but solely in
its capacity as trustee for the benefit of the Certificateholders
under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or
surviving any consolidation or merger to which it or its successors
may be a party and any successor trustee as may from time to time
be serving as successor trustee hereunder.
Uncertificated Accrued
Interest : With respect
to each REMIC Regular Interest, on each Distribution Date, an
amount equal to one month’s interest at the related
Uncertificated REMIC I Pass-Through Rate, Uncertificated REMIC II
Pass-Through Rate, or Uncertificated REMIC III Pass-Through Rate,
as applicable, on the Uncertificated Principal Balance or
Uncertificated Notional Amount of such REMIC Regular Interest. In
each case, Uncertificated Accrued Interest will be reduced by any
Unpaid Interest Shortfalls and interest portion of Realized Losses
(allocated to such REMIC Regular Interests as set forth in Sections
1.02 and 6.05).
Uncertificated Notional
Amount : With respect to
REMIC II Regular Interest C, the aggregate Uncertificated Principal
Balance of the REMIC I Regular Interests (other than REMIC I
Regular Interest P). With respect to the Regular Interest the
ownership of which is represented by the Class A-4 Certificates, an
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest A-3.
Uncertificated Principal
Balance : With respect to
each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each
REMIC Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular
Interest on such Distribution Date pursuant to Section 6.07 and, if
and to the extent necessary and appropriate, shall be further
reduced on such Distribution Date by Realized Losses as provided in
Section 6.05, and the Uncertificated Principal Balance of REMIC I
Regular Interest ZZ shall be increased by interest deferrals as
provided in Section 6.07(b)(i). The Uncertificated Principal
Balance of each REMIC Regular Interest shall never be less than
zero.
Uncertificated REMIC I
Pass-Through Rate : With
respect to any REMIC I Regular Interest other than REMIC I Regular
Interest P and any Distribution Date, a per annum rate equal to the
weighted average of the Net Mortgage Rates of the Mortgage Loans as
of the first day of the related Due Period, weighted on the basis
of the Stated Principal Balances thereof as of the first day of the
related Due Period. With respect to REMIC I Regular Interest P and
any Distribution Date, 0.00%.
Uncertificated REMIC II
Pass-Through Rate :
With respect to the REMIC II Regular
Interests, other than REMIC II Regular Interest C, REMIC II Regular
Interest A-1, REMIC II Regular Interest A-3 and REMIC II Regular
Inerest A-5, a rate per annum equal to the Pass-Through Rate
indicated for the Class of Corresponding Certificates as set forth
in the Preliminary Statement.
With respect to REMIC II Regular
Interest A-1 and (i) any Distribution Date which occurs on or prior
to the Optional Termination Date, the lesser of (a) 5.50% per annum
and (b) the weighted average of the Uncertificated REMIC I
Pass-Through Rates on the REMIC I Regular Interests (other than
REMIC I Regular Interest P), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular
Interest, and (ii) any Distribution Date thereafter, the lesser of
(a) 6.00% per annum and (b) the weighted average of the REMIC I
Pass-Through Rates on the REMIC I Regular Interests (other than
REMIC I Regular Interest P), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular
Interest.
With respect to REMIC II Regular
Interest A-3 and (i) any Distribution Date which occurs on or prior
to the Optional Termination Date, the lesser of (a) 5.50% per annum
and (b) the weighted average of the Uncertificated REMIC I
Pass-Through Rates on the REMIC I Regular Interests (other than
REMIC I Regular Interest P), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular
Interest, and (ii) any Distribution Date thereafter, the lesser of
(a) 6.00% per annum and (b) the weighted average of the REMIC I
Pass-Through Rates on the REMIC I Regular Interests (other than
REMIC I Regular Interest P), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular
Interest.
With respect to REMIC II Regular
Interest A-5 and (i) any Distribution Date which occurs on or prior
to the Optional Termination Date, the lesser of (a) 5.75% per annum
plus the Class A-5 Insurer Premium Rate multipled by 12 and (b) the
weighted average of the Uncertificated REMIC I Pass-Through Rates
on the REMIC I Regular Interests (other than REMIC I Regular
Interest P), weighted on the basis of the Uncertificated Principal
Balances of each such REMIC I Regular Interest, and (ii) any
Distribution Date thereafter, the lesser of (a) 6.25% per annum
plus the Class A-5 Insurer Premium Rate multipled by 12 and (b) the
weighted average of the REMIC I Pass-Through Rates on the REMIC I
Regular Interests (other than REMIC I Regular Interest P), weighted
on the basis of the Uncertificated Principal Balances of each such
REMIC I Regular Interest.
With respect to REMIC II Regular
Interest C, a rate per annum equal to the percentage equivalent of
a fraction, the numerator of which is the sum of the amount
determined for each REMIC I Regular Interest (other than REMIC I
Regular Interest P) equal to (x) the excess of the Uncertificated
REMIC I Pass-Through Rate for such REMIC I Regular Interest over
the Marker Rate, applied to (y) a notional amount equal to the
Uncertificated Principal Balance of such REMIC I Regular Interest,
and the denominator of which is the aggregate Uncertificated
Principal Balance of such REMIC I Regular Interests.
With respect to REMIC II Regular
Interest P, 0.00% per annum.
Uncertificated REMIC III
Pass-Through Rate :
With respect to REMIC III Regular
Interest A-1 and any Distribution Date, a rate equal to One-Month
LIBOR plus 0.60% per annum, subject to a cap equal to the weighted
average Uncertificated REMIC II Pass-Through Rate for REMIC II
Regular Interest A-1, weighted on the basis of the Uncertificated
Principal Balance thereof immediately prior to such Distribution
Date.
With respect to REMIC III Regular
Interest A-2 and any Distribution Date, a rate equal to the excess,
if any, of (A) the Uncertificated REMIC II Pass-Through Rate for
REMIC II Regular Interest A-2 over (B) the lesser of (x) One-Month
LIBOR plus 0.60% per annum and (y) the weighted average
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest A-2, weighted on the basis of the Uncertificated Principal
Balance thereof immediately prior to such Distribution
Date.
With respect to REMIC III Regular
Interest A-3 and any Distribution Date, a rate equal to the least
of (A) One-Month LIBOR plus 0.35% per annum, (B) 8.00% per annum
and (C) the product of (x) the weighted average of the REMIC I
Pass-Through Rates on the REMIC I Regular Interests (other than
REMIC I Regular Interest P), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular
Interest, and (y) the quotient of (1) 1 over (2)
68.750%.
With respect to REMIC III Regular
Interest A-4 and any Distribution Date, a rate equal to the excess,
if any, of (A) the Uncertificated REMIC II Pass-Through Rate for
REMIC II Regular Interest A-2 over (B) the least of (x) the product
of (1) One-Month LIBOR plus 0.35% per annum and (2) 68.750%, (y)
the product of (1) 8.00% per annum and (2) 68.750%, and (z) the
weighted average of the REMIC I Pass-Through Rates on the REMIC I
Regular Interests (other than REMIC I Regular Interest P), weighted
on the basis of the Uncertificated Principal Balances of each such
REMIC I Regular Interest.
Unpaid Interest
Shortfalls : Shall mean
Interest Shortfalls net of payments by the Company, the related
Servicer or the Master Servicer in respect of Compensating
Interest.
Voting Rights
: The portion of the voting rights
of all the Certificates that is allocated to any Certificate for
purposes of the voting provisions hereunder. Voting Rights shall be
allocated (i) 94.50% to the Certificates (other than the Class C,
Class P and the Residual Certificates), (ii) 1% to the Class P
Certificates, (iii) 3% to the Class C Certificates and (iv) 0.50%
to each Class of Residual Certificates, with the allocation among
the Certificates other than the Class C, Class P and Residual
Certificates to be in proportion to the Certificate Principal
Balance of each Class relative to the Certificate Principal Balance
of all other such Classes. Voting Rights will be allocated among
the Certificates of each such Class in accordance with their
respective Percentage Interests.
Yield Maintenance
Agreement : The Yield
Maintenance Agreement, dated November 30, 2005 between the Trust
(on behalf of the Class A-1 Certificateholders) and Bear Stearns
Financial Products Inc.
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Section 1.02
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Allocation of Certain Interest
Shortfalls.
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For purposes of calculating the
amount of the Monthly Interest Distributable Amount for the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class M-1, Class
M-2, Class M-3, Class B-1, Class B-2, Class B-3, Class B-4 and
Class C Certificates for any Distribution Date, (1) the aggregate
amount of any Unpaid Interest Shortfalls in respect of the Mortgage
Loans for any Distribution Date shall be allocated first, in
reduction of amounts otherwise distributable to the Class C
Certificates and Class R Certificates, and thereafter, among the
Offered Certificates in proportion to the amount of the Monthly
Interest Distributable Amount that would have been allocated to
such Certificates in the absence of such Unpaid Interest
Shortfalls, and (2) the interest portion of Realized Losses for the
Mortgage Loans will be allocated first, to the Class C
Certificates, based on, and to the extent of, one month’s
interest at the then applicable Pass-Through Rate on the
Certificate Notional Amount thereof, second to the Class B-4
Certificates, third to the Class B-3 Certificates, fourth to the
Class B-2 Certificates, fifth to the Class B-1 Certificates, sixth
to the Class M-3 Certificates, seventh to the Class M-2
Certificates, and eighth to the Class M-1 Certificates, based on,
and to the extent of, one month’s interest at the then
applicable respective Pass-Through Rates on the respective
Certificate Principal Balances of each such Certificate.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular
Interests (other than REMIC I Regular Interest P) for any
Distribution Date, the aggregate amount of any Unpaid Interest
Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to Uncertificated
Accrued Interest payable to REMIC I Regular Interest AA and REMIC I
Regular Interest ZZ up to an aggregate amount equal to the REMIC I
Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter among REMIC I Regular Interest AA, REMIC I Regular
Interest A-1, REMIC I Regular Interest A-3, REMIC I Regular
Interest A-5, REMIC I Regular Interest M-1, REMIC I Regular
Interest M-2, REMIC I Regular Interest M-3, REMIC I Regular
Interest B-1, REMIC I Regular Interest B-2, REMIC I Regular
Interest B-3, REMIC I Regular Interest B-4 and REMIC I Regular
Interest ZZ, pro rata in proportion to the amount of the
Uncertificated Accrued Interest that would have been allocated to
such REMIC I Regular Interests in the absence of such Unpaid
Interest Shortfalls.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC II Regular
Interests for any Distribution Date, the aggregate amount of any
Unpaid Interest Shortfalls incurred in respect of the Mortgage
Loans for any Distribution Date shall be allocated first to REMIC
II Regular Interest C, and then, pro rata, to REMIC II Regular
Interest A-1, REMIC II Regular Interest A-3, REMIC II Regular
Interest A-5, REMIC II Regular Interest M-1, REMIC II Regular
Interest M-2, REMIC II Regular Interest M-3, REMIC II Regular
Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest B-3 and REMIC II Regular Interest B-4, in each case based
on, and to the extent of, one month’s interest at the then
applicable respective Uncertificated REMIC II Pass-Through Rates on
the respective Uncertificated Principal Balances of each such REMIC
II Regular Interest.
ARTICLE
II
CONVEYANCE OF TRUST
FUND
REPRESENTATIONS AND
WARRANTIES
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Section 2.01
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Conveyance of Trust Fund.
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Pursuant to the Mortgage Loan
Purchase Agreement, the Seller sold, transferred, assigned, set
over and otherwise conveyed to the Depositor, without recourse, all
the right, title and interest of the Seller in and to the assets in
the Trust Fund.
The Seller has entered into this
Agreement in consideration for the purchase of the Mortgage Loans
by the Depositor pursuant to the Mortgage Loan Purchase Agreement
and has agreed to take the actions specified herein.
The Depositor, concurrently with the
execution and delivery hereof, hereby sells, transfers, assigns,
sets over and otherwise conveys to the Trustee for the use and
benefit of the Certificateholders and the Class A-5 Insurer,
without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund. In addition, on or prior to the
Closing Date, the Depositor shall cause the Class A-5 Insurer to
deliver the Class A-5 Policy to the Trustee with a copy to the
Securities Administrator.
In connection with such sale, the
Depositor has delivered to, and deposited with, the Trustee or the
Custodian, as its agent, the following documents or instruments
with respect to each Mortgage Loan so assigned: (i) the original
Mortgage Note, including any riders thereto, endorsed without
recourse (A) to the order of “U.S. Bank National Association,
as Trustee for certificateholders of Bear Stearns Asset Backed
Securities I LLC, Asset Backed Certificates, Series
2005-AC9,” or (B) in the case of a loan registered on the
MERS system, in blank, and in each case showing to the extent
available to the Seller an unbroken chain of endorsements from the
original payee thereof to the Person endorsing it to the Trustee,
(ii) the original Mortgage and, if the related Mortgage Loan is a
MOM Loan, noting the presence of the MIN and language indicating
that such Mortgage Loan is a MOM Loan, which shall have been
recorded (or if the original is not available, a copy), with
evidence of such recording indicated thereon (or if clause (x) in
the proviso below applies, shall be in recordable form), (iii)
unless the Mortgage Loan is a MOM Loan, the assignment (either an
original or a copy, which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the Mortgaged
Property is located) to the Trustee of the Mortgage with respect to
each Mortgage Loan in the name of “U.S. Bank National
Association, as Trustee for certificateholders of Bear Stearns
Asset Backed Securities I LLC, Asset Backed Certificates, Series
2005-AC9,” which shall have been recorded (or if clause (x)
in the proviso below applies, shall be in recordable form) (iv) an
original or a copy of all intervening assignments of the Mortgage,
if any, to the extent available to the Seller, with evidence of
recording thereon, (v) the original policy of title insurance or
mortgagee’s certificate of title insurance or commitment or
binder for title insurance, if available, or a copy thereof, or, in
the event that such original title insurance policy is unavailable,
a photocopy thereof, or in lieu thereof, a current lien search on
the related Mortgaged Property and (vi) originals or copies of all
available assumption, modification or substitution agreements, if
any; provided, however, that in lieu of the foregoing, the Seller
may deliver the following documents, under the circumstances set
forth below: (x) if any Mortgage, assignment thereof to the Trustee
or intervening
assignments thereof have been
delivered or are being delivered to recording offices for recording
and have not been returned in time to permit their delivery as
specified above, the Depositor may deliver a true copy thereof with
a certification by the Seller or the title company issuing the
commitment for title insurance, on the face of such copy,
substantially as follows: “Certified to be a true and correct
copy of the original, which has been transmitted for
recording” and (y) in lieu of the Mortgage Notes relating to
the Mortgage Loans identified in the list set forth in Exhibit I,
the Depositor may deliver a lost note affidavit and indemnity and a
copy of the original note, if available; and provided, further,
however, that in the case of Mortgage Loans which have been prepaid
in full after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver
to the Trustee and its Custodian a certification of a Servicing
Officer to such effect and in such case shall deposit all amounts
paid in respect of such Mortgage Loans, in the Master Servicer
Collection Account or in the Distribution Account on the Closing
Date. In the case of the documents referred to in clause (x) above,
the Depositor shall deliver such documents to the Trustee or its
Custodian promptly after they are received. The Seller shall cause,
at its expense, the Mortgage and intervening assignments, if any,
and to the extent required in accordance with the foregoing, the
assignment of the Mortgage to the Trustee to be submitted for
recording promptly after the Closing Date; provided that the Seller
need not cause to be recorded any assignment (a) in any
jurisdiction under the laws of which, as evidenced by an Opinion of
Counsel addressed to the Trustee and the Class A-5 Insurer
delivered by the Seller to the Trustee and the Rating Agencies, the
recordation of such assignment is not necessary to protect the
Trustee’s interest in the related Mortgage Loan or (b) if
MERS is identified on the Mortgage or on a properly recorded
assignment of the Mortgage as mortgagee of record solely as nominee
for Seller and its successors and assigns. In the event that the
Seller, the Depositor or the Master Servicer gives written notice
to the Trustee that a court has recharacterized the sale of the
Mortgage Loans as a financing, the Seller shall submit or cause to
be submitted for recording as specified above or, should the Seller
fail to perform such obligations, the Master Servicer shall cause
each such previously unrecorded assignment to be submitted for
recording as specified above at the expense of the Trust. In the
event a Mortgage File is released to the Company or the Servicer as
a result of such Person having completed a Request for Release, the
Custodian shall, if not so completed, complete the assignment of
the related Mortgage in the manner specified in clause (iii)
above.
In connection with the assignment of
any Mortgage Loan registered on the MERS® System, the Seller
further agrees that it will cause, at the Seller’s own
expense, within 30 days after the Closing Date, the MERS®
System to indicate that such Mortgage Loans have been assigned by
the Seller to the Depositor and by the Depositor to the Trustee in
accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance and the Class
A-5 Insurer with this Agreement) in such computer files (a) the
code in the field which identifies the specific Trustee and (b) the
code in the field “Pool Field” which identifies the
series of the Certificates issued in connection with such Mortgage
Loans. The Seller further agrees that it will not, and will not
permit the Company, any Servicer or the Master Servicer to, and the
Master Servicer agrees that it will not, alter the codes referenced
in this paragraph with respect to any Mortgage Loan during the term
of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement or the
Mortgage Loan Purchase Agreement.
The Depositor shall not be required
to deliver intervening assignments or Mortgage Note endorsements
between the related Underlying Seller and the Seller, between the
Seller and the Depositor, and between the Depositor and the
Trustee; and provided, further, however, that in the case of
Initial Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu
of delivering the above documents, may deliver to the Trustee or
the Custodian, as its agent, a certification to such effect and
shall deposit all amounts paid in respect of such Mortgage Loans in
the Master Servicer Collection Account on the Closing
Date.
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Section 2.02
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Acceptance of the Mortgage Loans.
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(a)
Based
on the Initial Certification received by it from the Custodian, the
Trustee acknowledges receipt of, subject to the further review and
exceptions reported by the Custodian pursuant to the procedures
described below, the documents (or certified copies thereof)
delivered to the Trustee or the Custodian on its behalf pursuant to
Section 2.01 and declares that it holds and will continue to hold
directly or through a custodian those documents and any amendments,
replacements or supplements thereto and all other assets of the
Trust Fund delivered to it in trust for the use and benefit of all
present and future Holders of the Certificates and the Class A-5
Insurer. On the Closing Date, the Trustee or the Custodian on its
behalf will deliver to the Seller, the Trustee and the Class A-5
Insurer an Initial Certification confirming whether or not it has
received the Mortgage File for each Mortgage Loan, but without
review of such Mortgage File, except to the extent necessary to
confirm whether such Mortgage File contains the original Mortgage
Note or a lost note affidavit and indemnity in lieu thereof. No
later than 90 days after the Closing Date, the Trustee or the
Custodian on its behalf shall, for the benefit of the
Certificateholders and the Class A-5 Insurer, review each Mortgage
File delivered to it and execute and deliver to the Seller and the
Class A-5 Insurer and, if reviewed by the Custodian, the Trustee,
an Interim Certification. In conducting such review, the Trustee or
the Custodian on its behalf will ascertain whether all required
documents have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans
identified in Exhibit B to this Agreement, as supplemented
(provided, however, that with respect to those documents described
in subclauses (iv) and (vi) of Section 2.01, such obligations shall
extend only to documents actually delivered pursuant to such
subclauses). In performing any such review, the Trustee and the
Custodian may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness
of any signature thereon. If the Trustee or the Custodian on its
behalf finds any document constituting part of the Mortgage File
not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective
on its face, the Trustee or the Custodian on its behalf shall
include such information in the exception report. The Seller shall
correct or cure any such defect or, if prior to the end of the
second anniversary of the Closing Date, the Seller may substitute
for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.03 or shall deliver to the
Trustee and the Class A-5 Insurer an Opinion of Counsel addressed
to the Trustee to the effect that such defect does not materially
or adversely affect the interests of the Certificateholders or the
Class A-5 Insurer in such Mortgage Loan (such determination to be
made without regard to the Class A-5 Policy) within 60 days from
the date of notice from the Trustee of the defect and if the Seller
fails to correct or cure the defect or deliver such opinion within
such period, the Seller will,
subject to Section 2.03, within 90
days from the notification of the Trustee purchase such Mortgage
Loan at the Purchase Price; provided, however, that if such defect
relates solely to the inability of the Seller to deliver the
Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such
documents have been submitted for recording and have not been
returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan if the Seller delivers such
documents promptly upon receipt, but in no event later than 360
days after the Closing Date.
(b)
No
later than 180 days after the Closing Date, the Trustee or the
Custodian on its behalf will review, for the benefit of the
Certificateholders and the Class A-5 Insurer, the Mortgage Files
and will execute and deliver or cause to be executed and delivered
to the Seller and the Class A-5 Insurer and, if reviewed by the
Custodian, the Trustee, a Final Certification. In conducting such
review, the Trustee or the Custodian on its behalf will ascertain
whether each document required to be recorded has been returned
from the recording office with evidence of recording thereon and
the Trustee or the Custodian on its behalf has received either an
original or a copy thereof, as required in Section 2.01 (provided,
however, that with respect to those documents described in
subclauses (iv) and (vi) of Section 2.01, such obligations shall
extend only to documents actually delivered pursuant to such
subclauses). If the Trustee or the Custodian on its behalf finds
any document with respect to a Mortgage Loan has not been received,
or to be unrelated, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans
identified in Exhibit B or to appear defective on its face, the
Trustee or the Custodian on its behalf shall note such defect in
the exception report attached to the Final Certification and shall
promptly notify the Seller and the Class A-5 Insurer. The Seller
shall correct or cure any such defect or, if prior to the end of
the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage
Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall
deliver to the Trustee and the Class A-5 Insurer an Opinion of
Counsel addressed to the Trustee to the effect that such defect
does not materially or adversely affect the interests of
Certificateholders or the Class A-5 Insurer in such Mortgage Loan
(such determination to be made without regard to the Class A-5
Policy) within 60 days from the date of notice from the Trustee of
the defect and if the Seller is unable within such period to
correct or cure such defect, or to substitute the related Mortgage
Loan with a Replacement Mortgage Loan or to deliver such opinion,
the Seller shall, subject to Section 2.03, within 90 days from the
notification of the Trustee, purchase such Mortgage Loan at the
Purchase Price; provided, however, that if such defect relates
solely to the inability of the Seller to deliver the Mortgage,
assignment thereof to the Trustee or intervening assignments
thereof with evidence of recording thereon, because such documents
have not been returned by the applicable jurisdiction, the Seller
shall not be required to purchase such Mortgage Loan, if the Seller
delivers such documents promptly upon receipt, but in no event
later than 360 days after the Closing Date.
(c)
In
the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above or Section 2.03,
the Seller shall remit the applicable Purchase Price to the Master
Servicer for deposit in the Master Servicer Collection Account and
shall provide written notice to the Trustee and the Class A-5
Insurer detailing the components of the Purchase Price, signed by a
Servicing Officer. Upon deposit of the Purchase Price in the Master
Servicer Collection Account and upon receipt of a Request for
Release with respect to such
Mortgage Loan, the Trustee or the
Custodian will release to the Seller the related Mortgage File and
the Trustee shall execute and deliver all instruments of transfer
or assignment, without recourse, representation or warranty
furnished to it by the Seller, as are necessary to vest in the
Seller title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the deposit
into the Master Servicer Collection Account was made. The Trustee
shall promptly notify the Rating Agencies and the Class A-5 Insurer
of such repurchase. The obligation of the Seller to cure,
repurchase or substitute for any Mortgage Loan as to which a defect
in a constituent document exists shall be the sole remedies
respecting such defect available to the Certificateholders and the
Class A-5 Insurer or to the Trustee on their behalf.
(d)
The
Seller shall deliver to the Trustee or the Custodian on its behalf,
and Trustee agrees to accept the Mortgage Note and other documents
constituting the Mortgage File with respect to any Replacement
Mortgage Loan, which the Trustee or the Custodian will review as
provided in Subsections 2.02(a) and 2.02(b), provided, that the
Closing Date referred to therein shall instead be the date of
delivery of the Mortgage File with respect to each Replacement
Mortgage Loan.
Section
2.03 Representations, Warranties
and Covenants of the Company, the Master Servicer and the
Seller.
(a)
The
Company hereby represents and warrants to the Master Servicer, the
Depositor, the Securities Administrator, the Trustee and the Class
A-5 Insurer as follows, as of the Closing Date:
(i)
It
is duly organized and is validly existing and in good standing
under the laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this
Agreement to be conducted by it in any state in which a Mortgaged
Property related to an EMC Mortgage Loan is located or is otherwise
not required under applicable law to effect such qualification and,
in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to ensure its ability to
enforce each EMC Mortgage Loan, to service the EMC Mortgage Loans
in accordance with the terms of this Agreement and to perform any
of its other obligations under this Agreement and any other
Transaction Documents to which it is a party in accordance with the
terms hereof.
(ii)
It
has the full corporate power and authority to service each EMC
Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement
and any other Transaction Documents to which it is a party and has
duly authorized by all necessary corporate action on its part the
execution, delivery and performance of this Agreement and any other
Transaction Documents to which it is a party; and this Agreement
and any other Transaction Documents to which it is a party,
assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to
equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii)
The
execution and delivery of this Agreement and any other Transaction
Documents to which it is a party by it, the servicing of the EMC
Mortgage Loans by it under this Agreement, the consummation of any
other of the transactions contemplated by this Agreement and any
other Transaction Documents to which it is a party, and the
fulfillment of or compliance with the terms hereof are in its
ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which it is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may
materially impair its ability to perform or meet any of its
obligations under this Agreement and any other Transaction
Documents to which it is a party.
(iv)
It
is an approved servicer of conventional mortgage loans for Fannie
Mae or Freddie Mac and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act.
(v)
No
litigation is pending or, to the best of its knowledge, threatened,
against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement and any
other Transaction Documents to which it is a party or its ability
to service the EMC Mortgage Loans or to perform any of its other
obligations under this Agreement and any other Transaction
Documents to which it is a party in accordance with the terms
hereof.
(vi)
No
consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement and any
other Transaction Documents to which it is a party or the
consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, it has
obtained the same.
(b)
Wells
Fargo Bank, National Association, in its capacity as Master
Servicer and Securities Administrator hereby represents and
warrants to the Seller, the Depositor, the Trustee and the Class
A-5 Insurer as follows, as of the Closing Date:
(i)
It
is a national banking association duly formed, validly existing and
in good standing under the laws of the United States of America and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Master
Servicer and the Securities Administrator in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such state, to
the extent necessary to ensure its ability to enforce each Mortgage
Loan, to
service the Mortgage Loans in
accordance with the terms of this Agreement and and any other
Transaction Documents to which it is a party to perform any of its
other obligations under this Agreement in accordance with the terms
hereof;
(ii)
It
has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions
contemplated by this Agreement and any other Transaction Documents
to which it is a party and has duly authorized by all necessary
corporate action on its part the execution, delivery and
performance of this Agreement and any other Transaction Documents
to which it is a party; and this Agreement and any other
Transaction Documents to which it is a party, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except that
(a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought.
(iii)
The
execution and delivery of this Agreement and any other Transaction
Documents to which it is a party by it, the consummation of any
other of the transactions contemplated by this Agreement, and any
other Transaction Documents to which it is a party and the
fulfillment of or compliance with the terms hereof are in its
ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which it is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may
materially impair its ability to perform or meet any of its
obligations under this Agreement and any other Transaction
Documents to which it is a party.
(iv)
No
litigation is pending or, to the best of its knowledge, threatened,
against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement and any
other Transaction Documents to which it is a party or its ability
to perform any of its other obligations under this Agreement and
any other Transaction Documents to which it is a party in
accordance with the terms hereof.
(v)
No
consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement and any
other Transaction Documents to which it is a party or the
consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, it has
obtained the same.
(c)
The
Seller hereby represents and warrants to the Depositor, the
Securities Administrator, the Master Servicer, the Trustee and the
Class A-5 Insurer as follows, as of the Closing Date:
(i)
The
Seller is duly organized as a Delaware corporation and is validly
existing and in good standing under the laws of the State of
Delaware and is duly authorized and qualified to transact any and
all business contemplated by this Agreement and any other
Transaction Documents to which it is a party to be conducted by the
Seller in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure
its ability to enforce each Mortgage Loan, to sell the Mortgage
Loans in accordance with the terms of this Agreement and to perform
any of its other obligations under this Agreement and any other
Transaction Documents to which it is a party in accordance with the
terms hereof.
(ii)
The
Seller has the full corporate power and authority to sell each
Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement
and any other Transaction Documents to which it is a party and has
duly authorized by all necessary corporate action on the part of
the Seller the execution, delivery and performance of this
Agreement and any other Transaction Documents to which it is a
party; and this Agreement and any other Transaction Documents to
which it is a party, assuming the due authorization, execution and
delivery hereof by the other parties hereto, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iii)
The
execution and delivery of this Agreement and any other Transaction
Documents to which it is a party by the Seller, the sale of the
Mortgage Loans by the Seller under the Mortgage Loan Purchase
Agreement, the consummation of any other of the transactions
contemplated by this Agreement and any other Transaction Documents
to which it is a party, and the fulfillment of or compliance with
the terms hereof and thereof are in the ordinary course of business
of the Seller and will not (A) result in a material breach of any
term or provision of the charter or by-laws of the Seller or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which the Seller
is a party or by which it may be bound, or (C) constitute a
material violation of any statute, order or regulation applicable
to the Seller of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Seller; and the
Seller is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
it which breach or violation may materially impair the
Seller’s ability to perform or meet any of its obligations
under this Agreement and any other Transaction Documents to which
it is a party.
(iv)
The
Seller is an approved seller of conventional mortgage loans for
Fannie Mae or Freddie Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act.
(v)
No
litigation is pending or, to the best of the Seller’s
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement and any other Transaction Documents to which it is a
party or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement and any
other Transaction Documents to which it is a party in accordance
with the terms hereof.
(vi)
No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement and any other Transaction Documents to which it is a
party or the consummation of the transactions contemplated hereby,
or if any such consent, approval, authorization or order is
required, the Seller has obtained the same.
(vii)
As of
the Closing Date, the representations and warranties concerning the
Mortgage Loans set forth in Section 7 of the Mortgage Loan Purchase
Agreement are true and correct in all material respects.
(d)
Upon
discovery by any of the parties hereto or the Class A-5 Insurer of
a breach of a representation or warranty set forth in Section 7 of
the Mortgage Loan Purchase Agreement that materially and adversely
affects the interests of the Certificateholders or the Class A-5
Insurer in any Mortgage Loan (such determination to be made without
regard to the Class A-5 Policy), the party discovering such breach
shall give prompt written notice thereof to the other parties and
the Class A-5 Insurer. The Seller hereby covenants with respect to
the representations and warranties set forth in Section 7 of the
Mortgage Loan Purchase Agreement, that within 90 days of the
discovery of a breach of any representation or warranty set forth
therein that materially and adversely affects the interests of the
Certificateholders (such determination to be made without regard to
the Class A-5 Policy) or the Class A-5 Insurer in any Mortgage
Loan, it shall cure such breach in all material respects and, if
such breach is not so cured, (i) if such 90-day period expires
prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a “Deleted Mortgage Loan”) from the
Trust Fund and substitute in its place a Replacement Mortgage Loan,
in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set
forth below; provided that any such substitution pursuant to (i)
above or repurchase pursuant to (ii) above shall not be effected
prior to the delivery to the Trustee and the Class A-5 Insurer of
an Opinion of Counsel if required by Section 2.05 hereof and any
such substitution pursuant to (i) above shall not be effected prior
to the additional delivery to the Trustee and the Class A-5 Insurer
of a Request for Release. The Seller shall promptly reimburse the
Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. To enable the Securities
Administrator to amend the Mortgage Loan Schedule, the Seller
shall, unless it cures such breach in a timely fashion pursuant to
this Section 2.03, promptly notify the Securities Administrator
whether it intends either to repurchase, or to substitute for, the
Mortgage Loan affected by such breach. With respect to the
representations and warranties in Section 7 of the Mortgage
Loan
Purchase Agreement that are made to
the best of the Seller’s knowledge, if it is discovered by
any of the Depositor, the Master Servicer, the Seller, the
Securities Administrator, the Trustee or the Class A-5 Insurer that
the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, notwithstanding the Seller’s lack of
knowledge with respect to the substance of such representation or
warranty, th
