MERRILL LYNCH MORTGAGE INVESTORS, INC.,
Depositor
WELLS FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
---------------------------------
Mortgage Pass-Through Certificates, MLMI Series 2005-A2
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
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<C>
ARTICLE I
DEFINITIONS
Section 1.01
Definitions..................................................................................2
Section 1.02
Accounting..................................................................................32
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans to
Trustee.....................................................33
Section 2.02
Acceptance of Mortgage Loans by
Trustee.....................................................36
Section 2.03
Assignment of Interest in the Assignment, Assumption and
Recognition Agreement..............39
Section 2.04
Substitution of Mortgage
Loans..............................................................40
Section 2.05
Issuance of
Certificates....................................................................41
Section 2.06
Representations and Warranties Concerning the
Depositor.....................................41
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01
Master
Servicer.............................................................................43
Section 3.02
REMIC-Related
Covenants.....................................................................44
Section 3.03 Monitoring
of
Servicer......................................................................44
Section 3.04
Fidelity
Bond...............................................................................45
Section 3.05
Power to Act;
Procedures....................................................................45
Section 3.06
Due-on-Sale Clauses; Assumption
Agreements..................................................46
Section 3.07
Release of Mortgage
Files...................................................................46
Section 3.08
Documents, Records and Funds in Possession of Master Servicer To Be
Held for Trustee........47
Section 3.09
Standard Hazard Insurance and Flood Insurance
Policies......................................48
Section 3.10
Presentment of Claims and Collection of
Proceeds............................................48
Section 3.11
Maintenance of the Primary Mortgage Insurance
Policies......................................49
Section 3.12
Trustee to Retain Possession of Certain Insurance Policies and
Documents....................49
Section 3.13
Realization Upon Defaulted Mortgage
Loans...................................................49
Section 3.14
Compensation for the
Master
Servicer........................................................50
Section 3.15
REO
Property................................................................................50
Section 3.16
Annual Officer's Certificate as to
Compliance...............................................50
Section 3.17
Annual Independent Accountant's Servicing
Report............................................51
Section 3.18
Reports Filed with Securities and Exchange
Commission.......................................52
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ARTICLE IV
ACCOUNTS
Section 4.01
Protected
Accounts..........................................................................54
Section 4.02
Master Servicer Collection
Account..........................................................55
Section 4.03
Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.............56
Section 4.04
Distribution
Account........................................................................57
Section 4.05
Permitted Withdrawals and Transfers from the Distribution
Account...........................57
ARTICLE V
CERTIFICATES
Section 5.01
The
Certificates............................................................................60
Section 5.02
Registration of Transfer and Exchange of
Certificates.......................................60
Section 5.03
Mutilated, Destroyed, Lost or Stolen
Certificates...........................................66
Section 5.04
Persons Deemed
Owners.......................................................................66
ARTICLE VI
Payments to Certificateholders
Section 6.01
Distributions on the
Certificates...........................................................68
Section 6.02
Allocation of
Losses........................................................................69
Section 6.03
Payments....................................................................................71
Section 6.04
Statements to
Certificateholders............................................................71
Section 6.05
Monthly
Advances............................................................................73
Section 6.06
Compensating Interest
Payments..............................................................74
ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01
Liabilities of the Master
Servicer..........................................................75
Section 7.02
Merger or Consolidation of the Master
Servicer..............................................75
Section 7.03
Indemnification from the Master Servicer and the
Depositor..................................75
Section 7.04
Limitations on Liability of the Master Servicer and
Others..................................75
Section 7.05
Master Servicer Not to
Resign...............................................................77
Section 7.06
Successor Master
Servicer...................................................................77
Section 7.07
Sale and Assignment of Master
Servicing.....................................................77
ARTICLE VIII
DEFAULT
Section 8.01
Events of
Default...........................................................................78
Section 8.02
Trustee to Act; Appointment of
Successor....................................................79
Section 8.03
Notification to
Certificateholders..........................................................80
Section 8.04
Waiver of
Defaults..........................................................................80
Section 8.05
List of
Certificateholders..................................................................81
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01
Duties of
Trustee...........................................................................82
Section 9.02
Certain Matters Affecting the Trustee and the Securities
Administrator......................84
Section 9.03
Trustee and Securities Administrator Not Liable for Certificates or
Mortgage Loans..........85
Section 9.04
Trustee and Securities Administrator May Own
Certificates...................................86
Section 9.05
Trustee's and Securities Administrator's Fees and
Expenses..................................86
Section 9.06
Eligibility Requirements for Trustee and Securities
Administrator...........................87
Section 9.07
Insurance...................................................................................87
Section 9.08
Resignation and Removal of the Trustee and Securities
Administrator.........................88
Section 9.09
Successor Trustee and Successor Securities
Administrator....................................88
Section 9.10
Merger or Consolidation of Trustee or Securities
Administrator..............................89
Section 9.11
Appointment of Co-Trustee or Separate
Trustee...............................................89
Section 9.12
Federal Information Returns and Reports to Certificateholders;
REMIC Administration.........90
ARTICLE X
TERMINATION
Section 10.01
Termination.................................................................................93
Section 10.02
Additional Termination
Requirements.........................................................94
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Intent of
Parties...........................................................................96
Section 11.02
Amendment...................................................................................96
Section 11.03
Recordation of
Agreement....................................................................97
Section 11.04 Limitation on Rights
of
Certificateholders..................................................97
Section 11.05
Acts of
Certificateholders..................................................................98
Section 11.06
Governing
Law...............................................................................99
Section 11.07
Notices.....................................................................................99
Section 11.08
Severability of
Provisions.................................................................100
Section 11.09
Successors and
Assigns.....................................................................100
Section 11.10
Article and Section
Headings...............................................................100
Section 11.11
Counterparts...............................................................................100
Section 11.12
Notice to Rating
Agencies..................................................................100
Section 11.13
Third Party
Beneficiary....................................................................100
</TABLE>
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EXHIBITS
Exhibit A-1 -
Form of
Class A and Class M Certificates
Exhibit A-2 -
Form of
Class B Certificates
Exhibit A-3 -
Form of
Class R Certificates
Exhibit B
- Mortgage
Loan Schedule
Exhibit C
-
[Reserved]
Exhibit D
- Request for Release of
Documents
Exhibit E-1 -
Form of
Transfer Affidavit pursuant to Section 860E(e)(4)
Exhibit E-2 -
Form of
Transferor Certificate
Exhibit F-1 -
Form of
Transferor Representation Letter
Exhibit F-2
- Form of Investor
Representation Letter
Exhibit F-3 -
Form of
Rule 144A Letter
Exhibit G
- Form of
Custodial Agreement
Exhibit H
-
Servicing Agreement
Exhibit I
-
Assignment, Assumption and Recognition Agreement
Exhibit J
-
[Reserved]
Exhibit K
- Form
Certification to be Provided by the Master Servicer
with Form 10-K
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POOLING AND SERVICING AGREEMENT
-------------------------------
This Pooling and Servicing Agreement is dated as of February 1,
2005
(the "Agreement"), among MERRILL LYNCH
MORTGAGE INVESTORS, INC., as depositor
(the "Depositor"), WELLS FARGO BANK, N.A.,
as master servicer (in such capacity,
the "Master Servicer") and as securities
administrator (in such capacity, the
"Securities Administrator") and WACHOVIA
BANK, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell mortgage pass-through
certificates
(collectively, the "Certificates"), to be
issued hereunder in multiple Classes,
which in the aggregate will evidence the
entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As
provided herein, the Trustee will
make, in accordance with Section 9.12, an
election to treat the entire
segregated pool of assets described in the
definition of REMIC Trust (as defined
herein), and subject to this Agreement, as
a real estate mortgage investment
conduit (a "REMIC") for federal income tax
purposes. The Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2
and Class B-3 Certificates will be
"regular interests" in the REMIC Trust, and
the Class R Certificates will be the
sole class of "residual interests" therein
for purposes of the REMIC Provisions
(as defined herein) under federal income
tax law.
The following table sets forth (or describes) the Class
designation,
the initial Pass-Through Rate, Original
Class Certificate Balance, and the
Assumed Final Maturity Date for each Class
of Certificates comprising the
interests in the Trust Fund created
hereunder:
<TABLE>
<CAPTION>
ORIGINAL
CLASS CERTIFICATE
ASSUMED FINAL
CLASS
BALANCE(1)
INITIAL PASS-THROUGH RATE
MATURITY DATES
-----
----------
-------------------------
--------------
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<C>
<C>
<C>
A-1
$
230,000,000.00
Variable(2)
January 25, 2035
A-2
$
533,717,000.00
Variable(2)
January 25, 2035
A-3
$
19,931,000.00
Variable(2)
January 25, 2035
A-4
$
88,258,000.00
Variable(2)
January 25, 2035
A-5
$
41,048,000.00
Variable(2)
January 25, 2035
A-6
$
25,000,000.00
Variable(2)
January 25, 2035
A-7
$
13,813,000.00
Variable(2)
January 25, 2035
A-8
$
1,533,000.00
Variable(2)
January 25, 2035
M-1
$
18,295,000.00
Variable(2)
January 25, 2035
M-2
$
6,427,000.00
Variable(2)
January 25, 2035
M-3
$
3,461,000.00
Variable(2)
January 25, 2035
B-1
$
3,461,000.00
Variable(2)
January 25, 2035
B-2
$
2,472,000.00
Variable(2)
January 25, 2035
B-3
$
1,484,952.41
Variable(2)
January 25, 2035
R
N/A
N/A
January 25, 2035
</TABLE>
(1) These balances are approximate and
are subject to an increase or decrease
of up to 5%.
(2) Interest will accrue on the Class
A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class
A-6, Class A-7, Class A-8, Class M-1, Class M-2, Class
M-3, Class B-1,
Class B-2 and Class B-3 Certificates based upon the
weighted average
of the net mortgage rates on the Mortgage Loans.
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<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless
otherwise expressly provided or unless the
context otherwise requires, shall have the
meanings specified in this Article.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage
Loan,
as applicable, either (x) those customary
mortgage master servicing practices of
prudent mortgage servicing institutions
that master service mortgage loans of
the same type and quality as such Mortgage
Loan in the jurisdiction where the
related Mortgaged Property is located, to
the extent applicable to the Trustee
or the Master Servicer (except in its
capacity as successor to a Servicer), or
(y) as provided in the Servicing Agreement,
to the extent applicable to the
Servicer, but in no event below the
standard set forth in clause (x).
ACCOUNT: The Master Servicer Collection Account, Distribution
Account
and any Protected Account as the context
may require.
ACCRUED CERTIFICATE INTEREST: With respect to each Class of
Certificates, an amount equal to the
interest accrued during the related
Interest Accrual Period on the Class
Certificate Balance thereof at the
then-applicable Pass-Through Rate. Accrued
Certificate Interest on any Class of
Certificates will be reduced by the amount
of (i) Prepayment Interest Shortfalls
(to the extent not offset by the Servicer
or Master Servicer with a payment of
Compensating Interest as provided in
Section 6.06), (ii) the interest portion of
Excess Losses allocated to such Class of
Certificates pursuant to Section 6.02
and (iii) any other interest shortfalls not
covered by the subordination
provided by the Class M Certificates and
Class B Certificates, including
shortfalls as a result of the Relief Act or
similar legislation or regulations,
with all such reductions allocated among
all of the Certificates in proportion
to their respective amounts of Accrued
Certificate Interest payable on such
Distribution Date which would have resulted
absent such reductions.
AFFILIATE: As to any Person, any other Person controlling,
controlled
by or under common control with such
Person. "Control" means the power to direct
the management and policies of a Person,
directly or indirectly, whether through
ownership of voting securities, by contract
or otherwise. "Controlled" and
"Controlling" have meanings correlative to
the foregoing. The Trustee may
conclusively presume that a Person is not
an Affiliate of another Person unless
a Responsible Officer of the Trustee has
actual knowledge to the contrary.
AGREEMENT: This Pooling and Servicing Agreement, including the
exhibits
hereto, and all amendments hereof and
supplements hereto.
APPLICABLE CREDIT RATING: For any long-term deposit or security,
a
credit rating of AAA in the case of Fitch
or S&P. For any short-term deposit or
security, or a rating of F-l+ in the case
of Fitch or A-1+ in the case of S&P.
APPLICABLE CREDIT SUPPORT PERCENTAGE: With respect to any Class
of
Certificates, the sum of the related Class
Subordination Percentages of such
Class and all Classes of Subordinate
Certificates which have a lower relative
priority of payment than such Class.
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<PAGE>
APPLICABLE STATE LAW: For purposes of Section 9.12(d), the
Applicable
State Law shall be (a) the law of the State
of New York and (b) such other state
law whose applicability shall have been
brought to the attention of the
Securities Administrator and the Trustee by
either (i) an Opinion of Counsel
reasonably acceptable to the Securities
Administrator and the Trustee delivered
to it by the Master Servicer or the
Depositor, or (ii) written notice from the
appropriate taxing authority as to the
applicability of such state law.
APPRAISED VALUE: With respect to any Mortgaged Property or
Cooperative
Unit, as applicable, the lesser of (i) the
value thereof as determined by an
appraisal made for the originator of the
Mortgage Loan at the time of
origination of the Mortgage Loan by an
appraiser who met the minimum
requirements of the Originator's
Underwriting Guidelines, and (ii) the purchase
price paid for the related Mortgaged
Property or Cooperative Unit, as
applicable, by the Mortgagor with the
proceeds of the Mortgage Loan, provided,
however, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged
Property or Cooperative Unit, as
applicable, is based solely upon the value
determined by an appraisal made for the
originator of such Refinanced Mortgage
Loan at the time of origination of such
Refinanced Mortgage Loan by an appraiser
who met the minimum requirements under the
Originator's Underwriting Guidelines.
ASSIGNMENT: An assignment of the Mortgage, notice of transfer
or
equivalent instrument, in recordable form,
sufficient under the laws of the
jurisdiction wherein the related Mortgaged
Property is located to reflect of
record the sale of the Mortgage Loan to the
Trustee for the benefit of
Certificateholders, which assignment,
notice of transfer or equivalent
instrument may be in the form of one or
more blanket assignments covering
Mortgages secured by Mortgaged Properties
located in the same county, if
permitted by law and accompanied by an
Opinion of Counsel to that effect.
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT: Shall mean
the
Assignment, Assumption and Recognition
Agreement (attached hereto as Exhibit I),
dated as of February 28, 2005, among the
Seller, the Depositor, the Originator
and Merrill Lynch Bank USA pursuant to
which (i) the Mortgage Loans were sold to
the Depositor and (ii) the Washington
Mutual Servicing Agreement and the
modifications thereto in the Warranty Bill
of Sale and the rights of the Seller
thereunder were assigned to the Depositor
for the benefit of the
Certificateholders.
ASSUMED FINAL DISTRIBUTION DATE: For all Classes of
Certificates,
February 25, 2035, or if such day is not a
Business Day, the next succeeding
Business Day.
AVAILABLE FUNDS: With respect to any Distribution Date and the
Mortgage
Loans, an amount equal to the excess of (i)
the sum of (a) the aggregate of the
related Monthly Payments received on or
prior to the related Determination Date,
(b) Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments, Subsequent
Recoveries and other unscheduled recoveries
of principal and interest in respect
of the Mortgage Loans during the related
Prepayment Period, (c) the aggregate of
any amounts received in respect of a
related REO Property withdrawn from any
Protected Account and deposited in the
Master Servicer Collection Account for
such Distribution Date, (d) the aggregate
of any amounts deposited in the Master
Servicer Collection Account by the Servicer
or the Master Servicer in respect of
related Prepayment Interest Shortfalls for
such Distribution Date and (e) the
aggregate of any related Monthly Advances
made by the Servicer
-3-
<PAGE>
or the Master Servicer for such
Distribution Date, over (ii) the sum of (a)
related amounts reimbursable or payable to
the Servicer or the Master Servicer
pursuant to Sections 4.03 and 4.05, (b)
related Stayed Funds, (c) related
amounts deposited in the Master Servicer
Collection Account or the Distribution
Account, as the case may be, in error and
(d) any Extraordinary Trust Fund
Expenses.
AVERAGE LOSS SEVERITY: With respect to any period, the fraction
obtained by dividing (x) the aggregate
amount of Realized Losses for the
Mortgage Loans for such period by (y) the
number of related Mortgage Loans which
had Realized Losses for such period.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended
as
codified in 11 U.S.C. ss.ss. 101-1330.
BANKRUPTCY LOSS COVERAGE AMOUNT: As of any date of determination
prior
to the first anniversary of the Cut-off
Date, an amount equal to the excess, if
any, of (A) $146,454 over (B) the aggregate
amount of Bankruptcy Losses
allocated solely to one or more specific
Classes of Certificates in accordance
with Section 6.02. As of any date of
determination on or after the first
anniversary of the Cut-off Date, an amount
equal to the excess, if any, of (1)
the lesser of (a) the Bankruptcy Loss
Coverage Amount calculated as of the close
of business on the Business Day immediately
preceding the most recent
anniversary of the Cut-off Date coinciding
with or preceding such date of
determination (or, if such date of
determination is an anniversary of the
Cut-off Date, the Business Day immediately
preceding such date of determination)
(for purposes of this definition, the
"Relevant Anniversary") and (b) the
greater of
(A) the greater of (i) 0.0006 times the aggregate
principal balance of all the Mortgage Loans in the Mortgage Pool as
of
the Relevant Anniversary having a Loan-to-Value Ratio at
origination
which exceeds 75% and (ii) $100,000; and (B) the greater of (i)
the
product of (x) an amount equal to the largest difference in the
related
Monthly Payment for any Non-Primary Residence Loan remaining in
the
Mortgage Pool which had an original Loan-to-Value Ratio greater
than
80% that would result if the Net Mortgage Rate thereof was equal to
the
greater of (I) 5% or (II) the weighted average (based on the
principal
balance of the Mortgage Loans as of the Relevant Anniversary) of
the
Net Mortgage Rates of all Mortgage Loans as of the Relevant
Anniversary
less 1.25% per annum, (y) a number equal to the weighted
average
remaining term to maturity, in months, of all Mortgage Loans with
a
Loan-to-Value Ratio of greater than 80% remaining in the Mortgage
Pool
as of the Relevant Anniversary, and (z) one plus the quotient of
the
number of all Non-Primary Residence Loans with a Loan-to-Value
Ratio of
greater than 80% remaining in the Mortgage Pool divided by the
total
number of outstanding Mortgage Loans in the Mortgage Pool as of
the
Relevant Anniversary, and (ii) $50,000,
over (2) the aggregate amount of Bankruptcy Losses allocated solely
to
one or more specific Classes of Certificates in accordance with
Section
6.02 since the Relevant Anniversary.
The Bankruptcy Loss Coverage Amount may be further reduced by
the Depositor (including accelerating the
manner in which such coverage is
reduced) provided that prior to any
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<PAGE>
such reduction, the Depositor shall (i)
obtain written confirmation from each
Rating Agency that such reduction shall not
reduce the rating assigned to any
Class of Certificates by such Rating Agency
below the lower of the then-current
rating or the rating assigned to such
Certificates as of the Closing Date by
such Rating Agency and (ii) provide a copy
of such written confirmation to the
Trustee.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any
Deficient
Valuation or Debt Service Reduction related
to such Mortgage Loan as reported by
the Servicer to the Master Servicer.
BOOK-ENTRY CERTIFICATES: Any of the Certificates that shall be
registered in the name of the Depository or
its nominee, the ownership of which
is reflected on the books of the Depository
or on the books of a Person
maintaining an account with the Depository
(directly, as a "Depository
Participant", or indirectly, as an indirect
participant in accordance with the
rules of the Depository and as described in
Section 5.02 hereof). On the Closing
Date, the Certificates (other than the
Class R Certificates and the Private
Certificates) shall be Book-Entry
Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or
(ii) a
day on which the New York Stock Exchange or
Federal Reserve is closed or on
which banking institutions in the
jurisdiction in which the Trustee, the Master
Servicer, the Servicer or the Securities
Administrator are authorized or
obligated by law or executive order to be
closed.
CERTIFICATE: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust
Fund signed and countersigned by the
Trustee.
CERTIFICATEHOLDER OR HOLDER: The Person in whose name a Regular
Certificate is registered in the
Certificate Register, except that a
Disqualified Organization or non-U.S.
Person shall not be a Holder of a Class R
Certificate for any purpose hereof.
CERTIFICATE OWNER: With respect to each Book-Entry Certificate,
any
beneficial owner thereof.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained
and registrar appointed pursuant to Section
5.02 hereof.
CLASS: Collectively, Certificates which have the same priority
of
payment and bear the same class designation
and the form of which is identical
except for variation in the Percentage
Interest evidenced thereby.
CLASS A CERTIFICATE: Any of the Class A-1, Class A-2, Class A-3,
Class
A-4, Class A-5, Class A-6, Class A-7 and
Class A-8 Certificates as designated on
the face thereof substantially in the form
annexed hereto as Exhibit A-1,
executed by the Trustee and authenticated
and delivered by the Trustee,
representing the right to distributions as
set forth herein and therein.
CLASS A CERTIFICATEHOLDER: Any Holder of a Class A Certificate.
CLASS B CERTIFICATE: Any one of the Class B-1, Class B-2 or Class
B-3
Certificates as designated on the face
thereof substantially in the form annexed
hereto as Exhibit A-2, executed
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<PAGE>
by the Trustee and authenticated and
delivered by the Trustee, representing the
right to distributions as set forth herein
and therein.
CLASS B CERTIFICATEHOLDER: Any Holder of a Class B Certificate.
CLASS B PERCENTAGE: The Class B-1 Percentage, Class B-2 Percentage
or
Class B-3 Percentage.
CLASS B-1 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class B-1 Certificates immediately
prior to such Distribution Date and the
denominator of which is the aggregate
Stated Principal Balance of all of the
Mortgage Loans (or related REO
Properties) immediately prior to such
Distribution Date.
CLASS B-2 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class B-2 Certificates immediately
prior to such Distribution Date and the
denominator of which is the aggregate
Stated Principal Balance of all of the
Mortgage Loans (or related REO
Properties) immediately prior to such
Distribution Date.
CLASS B-3 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class B-3 Certificates immediately
prior to such Distribution Date and the
denominator of which is the aggregate
Stated Principal Balance of all of the
Mortgage Loans (or related REO
Properties) immediately prior to such
Distribution Date.
CLASS CERTIFICATE BALANCE: With respect to any Certificate as of
any
date of determination, the Class
Certificate Balance of such Certificate on the
Distribution Date immediately prior to such
date of determination, plus, in the
case of a Subordinate Certificate, any
Subsequent Recoveries added to the Class
Certificate Balance of such Certificate
pursuant to Section 6.01, and reduced by
the aggregate of (a) all distributions of
principal made thereon on such
immediately prior Distribution Date and (b)
without duplication of amounts
described in clause (a) above, reductions
in the Class Certificate Balance
thereof in connection with allocations
thereto of Realized Losses on the
Mortgage Loans and Extraordinary Trust Fund
Expenses on such immediately prior
Distribution Date (or, in the case of any
date of determination up to and
including the initial Distribution Date,
the initial Class Certificate Balance
of such Certificate, as stated on the face
thereof); provided, however, that the
Class Certificate Balance of each
Subordinate Certificate of the Class of
Subordinate Certificates outstanding with
the highest numerical designation at
any given time shall be calculated to equal
the Percentage Interest evidenced by
such Certificate multiplied by the excess,
if any, of (A) the then aggregate
Stated Principal Balance of the Mortgage
Loans over (B) the then aggregate Class
Certificate Balance of all other Classes of
Certificates then outstanding. The
Class R Certificates shall not have Class
Certificate Balances.
CLASS M
CERTIFICATE: Any one of the Class M-1, Class M-2 or Class M-3
Certificates as designated on the face
thereof substantially in the form annexed
hereto as Exhibit A-1, executed
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by the Trustee and authenticated and
delivered by the Trustee, representing the
right to distributions as set forth herein
and therein.
CLASS M CERTIFICATEHOLDER: Any Holder of a Class M Certificate.
CLASS M PERCENTAGE: The Class M-1 Percentage, Class M-2 Percentage
or
Class M-3 Percentage.
CLASS M-1 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class M-1 Certificates immediately
prior to such date and the denominator of
which is the aggregate Stated
Principal Balance of all of the Mortgage
Loans (or related REO Properties)
immediately prior to such Distribution
Date.
CLASS M-2 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class M-2 Certificates immediately
prior to such date and the denominator of
which is the aggregate Stated
Principal Balance of all of the Mortgage
Loans (or related REO Properties)
immediately prior to such Distribution
Date.
CLASS M-3 PERCENTAGE: With respect to any Distribution Date, the
lesser
of 100% and a fraction, expressed as a
percentage, the numerator of which is the
aggregate Class Certificate Balance of the
Class M-3 Certificates immediately
prior to such date and the denominator of
which is the aggregate Stated
Principal Balance of all of the Mortgage
Loans (or related REO Properties)
immediately prior to such Distribution
Date.
CLASS R CERTIFICATES: The Class R Certificates executed,
authenticated
and delivered by the Trustee substantially
in the form annexed hereto as Exhibit
A-3 and evidencing the ownership of an
interest designated as a Residual
Interest.
CLASS SUBORDINATION PERCENTAGE: With respect to any Distribution
Date
and each Class of Subordinate Certificates,
the fraction (expressed as a
percentage) the numerator of which is the
Class Certificate Balance of such
Class of Subordinate Certificates
immediately prior to such Distribution Date
and the denominator of which is the
aggregate of the Class Certificate Balances
of all Classes of Certificates immediately
prior to such Distribution Date.
CLOSING DATE: February 28, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
COMMISSION: The Securities and Exchange Commission.
COMPENSATING INTEREST PAYMENT: As defined in Section 6.06.
COOPERATIVE: A corporation that has been formed for the purpose
of
cooperative apartment ownership.
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COOPERATIVE ASSETS: Shares issued by Cooperatives, the related
Cooperative Lease and any other collateral
securing the Cooperative Loans.
COOPERATIVE LEASE: With respect to a Cooperative Loan, the
proprietary
lease or occupancy agreement with respect
to the cooperative apartment occupied
by the Mortgagor and relating to the
related Cooperative Assets, which lease or
agreement confers an exclusive right to the
holder of such Cooperative Assets to
occupy such apartment.
COOPERATIVE LOAN: The indebtedness of a Mortgagor evidenced by
a
Mortgage Note which is secured by
Cooperative Assets and which is being sold to
the Depositor pursuant to this Agreement,
the Mortgage Loans so sold being
identified in the Mortgage Loan
Schedule.
COOPERATIVE PROJECT: All real property owned by a Cooperative
including
the land, separate dwelling units and all
common elements.
COOPERATIVE UNIT:
Means a specific unit in a Cooperative Project.
CORPORATE TRUST OFFICE: The principal corporate trust office of
the
Trustee at which at any particular time its
corporate trust business in
connection with this Agreement shall be
administered, which office at the date
of the execution of this instrument is
located at Wachovia Bank, National
Association, 401 South Tryon Street, 12th
Floor, Charlotte, NC 28288-1179,
Attention: Corporate Trust Group - Merrill
Lynch Mortgage Investors, Inc., MLMI
Series 2005-A2, or at such other address as
the Trustee may designate from time
to time by notice to the
Certificateholders, the Depositor and the Master
Servicer.
CURTAILMENT: Any Principal Prepayment made by a Mortgagor which is
not
a Principal Prepayment in Full.
CUSTODIAL AGREEMENT: An agreement, dated as of the Closing Date
among
the Depositor, the Master Servicer, the
Trustee and the Custodian in
substantially the form of Exhibit G
hereto.
CUSTODIAN: Wells Fargo Bank, N.A., or any successor custodian
appointed
pursuant to the provisions hereof and of
the Custodial Agreement.
CUT-OFF DATE: February 1, 2005.
DEBT SERVICE REDUCTION: Any reduction of the Monthly Payments which
a
Mortgagor is obligated to pay with respect
to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any
other similar state law or other
proceeding.
DEFECTIVE MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced
by
one or more Substitute Mortgage Loans.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation
of
the related Mortgaged Property by a court
of competent jurisdiction in an amount
less than the then outstanding principal
balance of the Mortgage Loan, which
valuation results from a proceeding
initiated under the Bankruptcy Code.
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DEPOSITOR: Merrill Lynch Mortgage Investors, Inc., a Delaware
corporation, or any successor in
interest.
DEPOSITORY: The Depository Trust Company, the nominee of which is
Cede
& Co., or any successor thereto.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time the Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
DESIGNATED DEPOSITORY INSTITUTION: A depository institution
(commercial
bank, federal savings bank, mutual savings
bank or savings and loan association)
or trust company (which may include the
Trustee), the deposits of which are
fully insured by the FDIC to the extent
provided by law.
DETERMINATION DATE: With respect to each Mortgage Loan, the
Determination Date as defined in the
Servicing Agreement.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United
States,
any State or political subdivision thereof,
any possession of the United States,
or any agency or instrumentality of any of
the foregoing (other than an
instrumentality which is a corporation if
all of its activities are subject to
tax and, except for Freddie Mac or any
successor thereto, a majority of its
board of directors is not selected by such
governmental unit), (ii) any foreign
government, any international organization,
or any agency or instrumentality of
any of the foregoing, (iii) any
organization (other than certain farmers'
cooperatives described in Section 521 of
the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of
the Code on unrelated business taxable
income), (iv) rural electric and
telephone cooperatives described in Section
1381(a)(2)(C) of the Code or (v) any
other Person so designated by the Trustee
based upon an Opinion of Counsel that
the holding of an ownership interest in a
Residual Certificate by such Person
may cause the REMIC Trust contained in the
Trust or any Person having an
ownership interest in the Residual
Certificate (other than such Person) to incur
a liability for any federal tax imposed
under the Code that would not otherwise
be imposed but for the transfer of an
ownership interest in a Residual
Certificate to such Person. The terms
"United States," "State" and
"international organization" shall have the
meanings set forth in Section 7701
of the Code or successor provisions.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which
shall be denominated "Wachovia Bank,
National Association, as Trustee f/b/o
holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2005-A2 -
Distribution Account." The Distribution
Account shall be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to
each
Distribution Date.
DISTRIBUTION DATE: The 25th day of any month, beginning in the
month
immediately following the month of the
Closing Date, or, if such 25th day is not
a Business Day, the Business Day
immediately following.
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DTC CUSTODIAN: Wachovia Bank, National Association, or its
successors
in interest as custodian for the
Depository.
DUE DATE: With respect to each Mortgage Loan, the date in each
month on
which its Monthly Payment is due if such
due date is the first day of a month
and otherwise is deemed to be the first day
of the following month or such other
date specified in the Servicing
Agreement.
DUE PERIOD: With respect to any Distribution Date and each
Mortgage
Loan, the period commencing on the second
day of the month preceding the month
in which the Distribution Date occurs and
ending at the close of business on the
first day of the month in which the
Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained
with
Servicer, unless and until the Servicer's
ratings for short-term unsecured debt
obligations are less than A-2 by S&P or
A- by Moody's, (ii) a segregated account
maintained with a federal or state
chartered depository institution (A) the
short-term obligations of which are rated
A-1 or better by S&P and P-1 by
Moody's at the time of any deposit therein
or (B) insured by the FDIC (to the
limits established by such Corporation),
the uninsured deposits in which account
are otherwise secured such that, as
evidenced by an Opinion of Counsel (obtained
by the Person requesting that the account
be held pursuant to this clause (i))
delivered to the Trustee prior to the
establishment of such account, the
Certificateholders will have a claim with
respect to the funds in such account
and a perfected first priority security
interest against any collateral (which
shall be limited to Permitted Investments,
each of which shall mature not later
than the Business Day immediately preceding
the Distribution Date next following
the date of investment in such collateral
or the Distribution Date if such
Permitted Investment is an obligation of
the institution that maintains the
Distribution Account) securing such funds
that is superior to claims of any
other depositors or general creditors of
the depository institution with which
such account is maintained, (iii) a
segregated trust account or accounts
maintained with a federal or state
chartered depository institution or trust
company with trust powers acting in its
fiduciary capacity or (iv) a segregated
account or accounts of a depository
institution acceptable to the Rating
Agencies (as evidenced in writing by the
Rating Agencies that use of any such
account as the Distribution Account will
not have an adverse effect on the
then-current ratings assigned to the
Classes of the Certificates then rated by
the Rating Agencies). Eligible Accounts may
bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-RESTRICTED CERTIFICATES: Any of the Class B-1, Class B-2,
Class
B-3 and Class R Certificates.
EVENT OF DEFAULT: An event of default described in Section
8.01.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is
not
required by law to be paid to the related
Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to
a Liquidated Mortgage Loan exceed the
sum of (i) the Outstanding Principal
Balance of such Mortgage Loan and accrued
but unpaid interest at the related Mortgage
Interest Rate through the last day
of the month in which the related
Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
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EXCESS LOSSES: (i) Special Hazard Losses in excess of the
Special
Hazard Loss Coverage Amount, (ii)
Bankruptcy Losses in excess of the Bankruptcy
Loss Coverage Amount, (iii) Fraud Losses in
excess of the Fraud Loss Amount and
(iv) Extraordinary Losses.
EXTRAORDINARY LOSS: Any Realized Loss or portion thereof caused by
or
resulting from:
(i) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled
or
uncontrolled and whether such loss be direct or indirect, proximate
or
remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term
"Special
Hazard Loss";
(ii) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against
an
actual, impending or expected attack by any government or
sovereign
power, de jure or de facto, or by any authority maintaining or
using
military, naval or air forces, or by military, naval or air forces,
or
by an agent of any such government, power, authority or forces;
(iii) any weapon of war employing atomic fission or
radioactive forces whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating
or defending against such an occurrence, seizure or destruction
under
quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or
illegal
transactions or trade.
EXTRAORDINARY TRUST FUND EXPENSES: Any amounts reimbursable to
the
Master Servicer or the Depositor pursuant
to this Agreement, including but not
limited to Sections 4.03, 4.05 and 7.04,
any amounts reimbursable to the Trustee
and the Securities Administrator from the
Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05,
and any other costs, expenses,
liabilities and losses borne by the Trust
Fund (exclusive of any cost, expense,
liability or loss that is specific to a
particular Mortgage Loan or REO Property
and is taken into account in calculating a
Realized Loss in respect thereof) for
which the Trust Fund has not and, in the
reasonable good faith judgment of the
Trustee, shall not, obtain reimbursement or
indemnification from any other
Person.
FANNIE MAE: Federal National Mortgage Association or any
successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor
thereto.
FINAL CERTIFICATION: The certification substantially in the form
of
Exhibit Two to the Custodial Agreement.
FITCH: Fitch Ratings or its successor in interest.
FRAUD LOSS AMOUNT: Initially, approximately $989,010. As of any
date of
determination after the Cut-off Date, the
Fraud Loss Amount shall equal: (X)
prior to the second anniversary of the
Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the Cut-off Date
and (b)
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1.00% of the aggregate principal balance of
all of the Mortgage Loans as of the
Cut-off Date minus (2) the aggregate
amounts allocated through Subordination
with respect to Fraud Losses as of the
Cut-off Date up to such date of
determination and (Y) from the third to the
fifth anniversary of the Cut-off
Date, (1) the lesser of (a) the Fraud Loss
Amount as of the most recent
anniversary of the Cut-off Date and (b)
0.50% of the aggregate principal balance
of all of the Mortgage Loans as of the most
recent anniversary of the Cut-off
Date minus (2) the aggregate amounts
allocated through Subordination with
respect to Fraud Losses since the most
recent anniversary of the Cut-off Date up
to such date of determination. On and after
the fifth anniversary of the Cut-off
Date, the Fraud Loss Amount shall be zero
and Fraud Losses shall not be
allocated through Subordination.
The Fraud Loss Amount may be further reduced by the Depositor
(including accelerating the manner in which
such coverage is reduced) provided
that prior to any such reduction, the
Depositor shall (i) obtain written
confirmation from each Rating Agency that
such reduction shall not reduce the
rating assigned to any Class of
Certificates by such Rating Agency below the
lower of the then-current rating or the
rating assigned to such Certificates as
of the Closing Date by such Rating Agency
and (ii) provide a copy of such
written confirmation to the Trustee.
FRAUD LOSSES: Losses sustained on a Liquidated Mortgage Loan by
reason
of a default arising from fraud, dishonesty
or misrepresentation as reported by
the Servicer to the Master Servicer.
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).
GROSS MARGIN: As to each Mortgage Loan, the fixed percentage set
forth
in the related Mortgage Note and indicated
on the Mortgage Loan Schedule which
percentage is added to the related Index on
each Interest Adjustment Date to
determine (subject to rounding, the minimum
and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage
Interest Rate until the next Interest
Adjustment Date.
HIGHEST PRIORITY: As of any date of determination, the Class of
Subordinate Certificates then outstanding
with the earliest priority for
payments pursuant to Section 6.01, in the
following order: Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class
B-3 Certificates.
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, the
Depositor
and the Securities Administrator and their
officers, directors, agents and
employees and, with respect to the Trustee,
any separate co-trustee and its
officers, directors, agents and
employees.
INDEPENDENT: When used with respect to any specified Person, any
such
Person who (a) is in fact independent of
the Depositor, the Master Servicer and
their respective Affiliates, (b) does not
have any direct financial interest in
or any material indirect financial interest
in the Depositor
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or the Master Servicer or any Affiliate
thereof, and (c) is not connected with
the Depositor or the Master Servicer or any
Affiliate thereof as an officer,
employee, promoter, underwriter, trustee,
partner, director or Person performing
similar functions; provided, however, that
a Person shall not fail to be
Independent of the Depositor or the Master
Servicer or any Affiliate thereof
merely because such Person is the
beneficial owner of 1% or less of any class of
securities issued by the Depositor or the
Master Servicer or any Affiliate
thereof, as the case may be.
INDEX: The index, if any, specified in a Mortgage Note by reference
to
which the related Mortgage Interest Rate
will be adjusted from time to time.
INDIVIDUAL CERTIFICATE: Any Private Certificate registered in the
name
of the Holder other than the Depository or
its nominee.
INITIAL CERTIFICATION: The certification substantially in the form
of
Exhibit One to the Custodial Agreement.
INITIAL CLASS CERTIFICATE BALANCE: With respect to any Regular
Certificate, the amount designated "Initial
Class Certificate Balance" on the
face thereof.
INITIAL SUBORDINATE CLASS PERCENTAGE: With respect to each Class
of
Subordinate Certificates, an amount which
is equal to the initial aggregate
Class Certificate Balance of such Class of
Subordinate Certificates divided by
the aggregate Stated Principal Balance of
all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 1.85%
Class B-1: 0.35%
Class M-2: 0.65%
Class B-2: 0.25%
Class M-3: 0.35%
Class B-3: 0.15%
INSURANCE POLICY: With respect to any Mortgage Loan, any
standard
hazard insurance policy, flood insurance
policy or title insurance policy.
INSURANCE PROCEEDS: Amounts paid by the insurer under any
Insurance
Policy covering any Mortgage Loan or
Mortgaged Property other than amounts
required to be paid over to the Mortgagor
pursuant to law or the related
Mortgage Note or Security Instrument and
other than amounts used to repair or
restore the Mortgaged Property or to
reimburse insured expenses.
INTEREST ACCRUAL PERIOD: With respect to each Distribution Date,
for
each Class of Certificates, the calendar
month preceding the month in which such
Distribution Date occurs.
INTEREST ADJUSTMENT DATE: With respect to a Mortgage Loan, the
date, if
any, specified in the related Mortgage Note
on which the Mortgage Interest Rate
is subject to adjustment.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which
the
Servicer has determined that all amounts it
expects to recover from or on
account of such Mortgage Loan have been
recovered.
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LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan,
the
date on which the Servicer has certified
that such Mortgage Loan has become a
Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in
liquidation,
unreimbursed expenses paid or incurred by
or for the account of the Master
Servicer or the Servicer in connection with
the liquidation of such Mortgage
Loan and the related Mortgaged Property,
such expenses including (a) property
protection expenses, (b) property sales
expenses, (c) foreclosure and sale
costs, including court costs and reasonable
attorneys' fees, and (d) similar
expenses reasonably paid or incurred in
connection with liquidation.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds
and
condemnation proceeds, received in
connection with the liquidation of a
defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or
otherwise.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan as of any
date
of determination, the ratio on such date of
the Outstanding Principal Balance of
the Mortgage Loan, to the Appraised Value
of the Mortgaged Property.
LOWER PRIORITY: As of any date of determination and with respect to
any
Class of Subordinate Certificates, any
other Class of Subordinate Certificates
then outstanding with a later priority for
payments pursuant to Section 6.01.
LOWEST PRIORITY: As of any date of determination, the Class of
Subordinate Certificates then outstanding
with the latest priority for payments
pursuant to Section 6.01, in the following
order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1
Certificates.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan
Schedule.
MAJORITY CERTIFICATEHOLDERS: The Holders of Certificates evidencing
at
least 51% of the Voting Rights.
MASTER SERVICER: Wells Fargo Bank, N.A. including, its
respective
successors in interest who meet the
qualifications of this Agreement.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or
accounts
created and maintained pursuant to Section
4.02, which shall be denominated
"Wachovia Bank, National Association, as
Trustee f/b/o holders of Merrill Lynch
Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MLMI Series
2005-A2 - Master Servicer Collection
Account." The Master Servicer Collection
Account shall be an Eligible Account.
MASTER SERVICING COMPENSATION: The meaning specified in Section
3.14.
MAXIMUM LIFETIME MORTGAGE RATE: The maximum level to which a
Mortgage
Interest Rate can adjust in accordance with
its terms, regardless of changes in
the applicable Index.
MINIMUM LIFETIME MORTGAGE RATE: The minimum level to which a
Mortgage
Interest Rate can adjust in accordance with
its terms, regardless of changes in
the applicable Index.
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MLBUSA: Merrill Lynch Bank USA.
MLCC: Merrill Lynch Credit Corporation.
MLMLI: Merrill Lynch Mortgage Lending, Inc.
MONTHLY ADVANCE: An advance of principal or interest required to
be
made by the Servicer pursuant to the
Servicing Agreement or the Master Servicer
pursuant to Section 6.05.
MONTHLY PAYMENT: With respect to any Mortgage Loan, the
scheduled
monthly payment of principal and interest
on such Mortgage Loan which is payable
by the related Mortgagor from time to time
under the related Mortgage Note,
determined: (a) after giving effect to (i)
any Deficient Valuation and/or Debt
Service Reduction with respect to such
Mortgage Loan and (ii) any reduction in
the amount of interest collectible from the
related Mortgagor pursuant to the
Relief Act; (b) without giving effect to
any extension granted or agreed to by
the Servicer pursuant to Servicing
Agreement; and (c) on the assumption that all
other amounts, if any, due under such
Mortgage Loan are paid when due.
MONTHLY PRINCIPAL: The principal portion of any Monthly
Payment.
MOODY'S: Moody's Investors Service, Inc. or its successor in
interest.
MORTGAGE: The mortgage, deed of trust or other instrument creating
a
first lien on, or first priority security
interest in, a Mortgaged Property
securing a Mortgage Note.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues
from
time to time on any Mortgage Loan pursuant
to the related Mortgage Note, which
rate is equal to the "Mortgage Interest
Rate" set forth with respect thereto on
the Mortgage Loan Schedule.
MORTGAGE LOAN: A mortgage loan transferred and assigned to the
Trustee
pursuant to Section 2.01 or Section 2.04
and held as a part of the Trust Fund,
as identified in the Mortgage Loan
Schedule, including a mortgage loan the
property securing which has become an REO
Property.
MORTGAGE LOAN SCHEDULE: The schedule, attached hereto as Exhibit B
with
respect to the Mortgage Loans and as
amended from time to time to reflect the
repurchase or substitution of Mortgage
Loans pursuant to this Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of
the
indebtedness of a Mortgagor under the
related Mortgage Loan.
MORTGAGE POOL: The pool of Mortgage Loans, identified on Exhibit B
from
time to time, and any REO Properties
acquired in respect thereof.
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MORTGAGED PROPERTY: Land and improvements securing the indebtedness
of
a Mortgagor under the related Mortgage Loan
or, in the case of REO Property,
such REO Property.
MORTGAGOR: The obligor on a Mortgage Note.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation
Expenses which are payable therefrom
by the Servicer or the Master Servicer in
accordance with the Servicing
Agreement or this Agreement and (ii)
unreimbursed advances by the Servicer or
the Master Servicer and Monthly
Advances.
NET MORTGAGE RATE: With respect to each Mortgage Loan, the
Mortgage
Interest Rate in effect from time to time
less the Servicing Fee Rate (expressed
as a per annum rate).
NONRECOVERABLE ADVANCE: Any Monthly Advance or Servicing
Advance
previously made or proposed to be made in
respect of a Mortgage Loan or REO
Property that, in the good faith business
judgment of the Servicer, will not,
or, in the case of a proposed Monthly
Advance or Servicing Advance, would not
be, ultimately recoverable from related
late payments, condemnation proceeds,
Insurance Proceeds or Liquidation Proceeds
on such Mortgage Loan or REO Property
as provided herein.
OFFERED CERTIFICATE: Any Senior Certificate or Offered
Subordinate
Certificate.
OFFERED SUBORDINATE CERTIFICATES: The Class M-l, Class M-2 and
Class
M-3 Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the
President or a Vice President or
Assistant Vice President or other
authorized officer of the Master Servicer or
the Depositor, as applicable, and delivered
to the Trustee, as required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless
required to be Independent (an
"Opinion of Independent Counsel"), may be
internal counsel for the Master
Servicer or the Depositor.
OPTIONAL TERMINATION DATE: The first Distribution Date on which
the
Master Servicer may opt to terminate the
Trust Fund pursuant to Section 10.01.
ORIGINAL CLASS CERTIFICATE BALANCE: With respect to each Class of
the
Certificates (other than the Class R
Certificates), the Class Certificate
Balance thereof on the Closing Date, as set
forth opposite such Class above in
the Preliminary Statement.
ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The sum of the aggregate
Class
Certificate Balances of each Class of
Subordinate Certificates as of the Closing
Date.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the
sales
price of a Mortgaged Property at the time
of origination of a Mortgage Loan,
except in instances where either clauses
(i) or (ii) is unavailable, the other
may be used to determine the Original
Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be
determined from other sources reasonably
acceptable to the Depositor.
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ORIGINATOR: Washington Mutual Bank, FA.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a
Mortgage
Loan which, prior to such Due Date, was not
the subject of a Principal
Prepayment in Full, did not become a
Liquidated Mortgage Loan and was not
purchased or replaced.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination,
the
principal balance of a Mortgage Loan
remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the
principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor
at the time such property was
acquired by the Trust Fund less any Net
Liquidation Proceeds with respect
thereto to the extent applied to
principal.
OWNERSHIP INTEREST: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
PASS-THROUGH RATE: With respect to the Class A, Class M and Class
B
Certificates and any Distribution Date, the
weighted average of the Net Mortgage
Rates on the Mortgage Loans as of the close
of business on the first day of the
calendar month preceding the month in which
such Distribution Date occurs,
weighted on the basis of the Stated
Principal Balances thereof as of the close
of business on the last day of the calendar
month preceding the month in which
such Distribution Date occurs. The
Pass-Through Rate with respect to the first
Interest Accrual Period is expected to be
approximately 4.509% per annum.
PAYING AGENT: The Trustee or any successor Paying Agent appointed
by
the Trustee.
PERCENTAGE INTEREST: With respect to any Certificate (other than
a
Class R Certificate), a fraction, expressed
as a percentage, the numerator of
which is the Initial Class Certificate
Balance represented by such Certificate
and the denominator of which is the
Original Class Certificate Balance of the
related Class. With respect to any Class of
Class R Certificates, the portion of
such Class evidenced thereby, expressed as
a percentage, as stated on the face
of such Certificate; provided, however,
that the sum of all such percentages for
each such Class totals 100%.
PERIODIC RATE CAP: With respect to each Mortgage Loan, the
maximum
adjustment that can be made to the Mortgage
Interest Rate on each Interest
Adjustment Date in accordance with its
terms, regardless of changes in the
applicable Index.
PERMITTED INVESTMENTS: Any one or more of the following obligations
or
securities held in the name of the Trustee
for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely payment of
which
are fully guaranteed by the United States
of America or any agency or
instrumentality of the United States of
America the obligations of which are
backed by the full faith and credit of the
United States of America;
-17-
<PAGE>
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances
issued by any depository institution or
trust company incorporated under the
laws of the United States of America or any
state thereof (including the Trustee
or the Master Servicer or its Affiliates
acting in its commercial banking
capacity) and subject to supervision and
examination by federal and/or state
banking authorities, provided that the
commercial paper and/or the short-term
debt rating and/or the long-term unsecured
debt obligations of such depository
institution or trust company at the time of
such investment or contractual
commitment providing for such investment
have the Applicable Credit Rating or
better from each Rating Agency and (b) any
other demand or time deposit or
certificate of deposit that is fully
insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any security
described
in clause (i) above or (b) any other
security issued or guaranteed by an agency
or instrumentality of the United States of
America, the obligations of which are
backed by the full faith and credit of the
United States of America, in either
case entered into with a depository
institution or trust company (acting as
principal) described in clause (ii)(a)
above where the Trustee holds the
security therefor;
(iv) securities bearing interest or sold at a discount issued by
any
corporation (including the Trustee or the
Master Servicer or its Affiliates)
incorporated under the laws of the United
States of America or any state thereof
that have the Applicable Credit Rating or
better from each Rating Agency at the
time of such investment or contractual
commitment providing for such investment;
provided, however, that securities issued
by any particular corporation will not
be Permitted Investments to the extent that
investments therein will cause the
then outstanding principal amount of
securities issued by such corporation and
held as part of the Trust to exceed 10% of
the aggregate Outstanding Principal
Balances of all the Mortgage Loans and
Permitted Investments held as part of the
Trust;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing
obligations payable on demand or on a specified
date not more than one year after the date
of issuance thereof) having the
Applicable Credit Rating or better from
each Rating Agency at the time of such
investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company
or
other corporation or entity;
(vii) any other demand, money market or time deposit,
obligation,
security or investment as may be acceptable
to either Rating Agency as evidenced
in writing by each Rating Agency to the
Trustee or Master Servicer;
(viii) any money market or common trust fund having the
Applicable
Credit Rating or better from each Rating
Agency (if such fund is rated by each
Rating Agency), including any such fund for
which the Trustee or Master Servicer
or any affiliate of the Trustee or Master
Servicer acts as a manager or an
advisor; provided, however, that no
instrument or security shall be a Permitted
Investment if such instrument or security
evidences a right to receive only
interest payments with respect to the
obligations underlying such instrument or
if such security provides
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<PAGE>
for payment of both principal and interest
with a yield to maturity in excess of
120% of the yield to maturity at par or if
such instrument or security is
purchased at a price greater than par;
and
(ix) units of a taxable money-market portfolio having the
highest
rating assigned by each Rating Agency
(except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the
highest rating assigned by Moody's and (ii)
if S&P is a Rating Agency, "AAAm" or
"AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the
United States of America or entities
whose obligations are backed by the full
faith and credit of the United States
of America and repurchase agreements
collateralized by such obligations.
PERMITTED TRANSFEREE: Any Person other than a Disqualified
Organization
or an "electing large partnership" (as
defined by Section 775 of the Code).
PERSON: Any individual, corporation, partnership, joint
venture,
association, limited liability company,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
PHYSICAL CERTIFICATES: The Residual Certificates and the
Private
Certificates.
PRELIMINARY SERVICING PERIOD: With respect to any Mortgage Loans,
the
period commencing on the related Closing
Date and ending on the date the
Servicer enters into Reconstitution
Agreements which amend or restate the
servicing provisions of this Agreement.
PREPAYMENT DISTRIBUTION TRIGGER: With respect to any Distribution
Date
and any Class of Subordinate Certificates
(other than the Class M-1
Certificates), a test that shall be
satisfied if the fraction (expressed as a
percentage) equal to the sum of the Class
Certificate Balances of such Class and
each Class of Subordinate Certificates with
a Lower Priority than such Class
immediately prior to such Distribution Date
divided by the aggregate Stated
Principal Balance of all of the Mortgage
Loans (or related REO Properties)
immediately prior to such Distribution Date
is greater than or equal to the sum
of the related Initial Subordinate Class
Percentages of such Classes of
Subordinate Certificates.
PREPAYMENT INTEREST SHORTFALL: As to any Distribution Date and
any
Mortgage Loan (other than a Mortgage Loan
relating to an REO Property) that was
the subject of (a) a Principal Prepayment
in Full during the related Prepayment
Period, an amount equal to the excess of
one month's interest at the Net
Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net
Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such
Principal Prepayment in Full or (b) a
Curtailment during the prior calendar
month, an amount equal to one month's
interest at the Net Mortgage Rate on the
amount of such Curtailment. The
obligations of the Master Servicer in
respect of any Prepayment Interest
Shortfall are set forth in Section
6.06.
PREPAYMENT PERIOD: With respect to any Mortgage Loan and any
Distribution Date, the calendar month
preceding the month in which such
Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage
guaranty
insurance policy issued in connection with
a Mortgage Loan which provides
compensation to a Mortgage Note
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<PAGE>
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 PREPAYMENT: Any payment (whether partial or full) or
other
recovery of principal on a Mortgage Loan
which is received in advance of its
scheduled Due Date to the extent that it is
not accompanied by an amount as to
interest representing scheduled interest
due on any date or dates in any month
or months subsequent to the month of
prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the
principal portion of Net Liquidation
Proceeds.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment made by
a
Mortgagor of the entire unpaid principal
balance of the Mortgage Loan.
PRIVATE CERTIFICATES: Any of the Class B-1, Class B-2 and Class
B-3
Certificates.
PROTECTED ACCOUNT: An account established and maintained for
the
benefit of Certificateholders by the
Servicer with respect to the related
Mortgage Loans and with respect to REO
Property pursuant to the Servicing
Agreement. The Protected Account shall be
an Eligible Account.
PURCHASE PRICE: With
respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by
Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from
the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of
the Stated Principal Balance thereof
as of the date of purchase (or such other
price as provided in Section 10.01),
(ii) accrued interest on such Stated
Principal Balance at the applicable
Mortgage Interest Rate in effect from time
to time from the Due Date as to which
interest was last covered by a payment by
the Mortgagor or an advance by the
Servicer or Master Servicer, which payment
or advance had as of the date of
purchase been distributed to
Certificateholders, through the end of the calendar
month in which the purchase is to be
effected less any unreimbursed Monthly
Advances and any unpaid Servicing Fees
payable to the purchaser of the Mortgage
Loan and (iii) any costs and damages
incurred by the Trust in connection with
any violation by such Mortgage Loan or REO
Property of any predatory or
abusive-lending law.
QUALIFIED INSURER: Any insurance company duly qualified as such
under
the laws of the state or states in which
the related Mortgaged Property or
Mortgaged Properties is or are located,
duly authorized and licensed in such
state or states to transact the type of
insurance business in which it is
engaged and approved as an insurer by the
Master Servicer, so long as the claims
paying ability of which is acceptable to
the Rating Agencies for pass-through
certificates having the same rating as the
Certificates rated by the Rating
Agencies as of the Closing Date.
RATING AGENCIES: Fitch and S&P.
REALIZED LOSS: With respect to a Liquidated Mortgage Loan, the
amount
by which the remaining unpaid principal
balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to
the principal balance of the related
Mortgage Loan. To the extent the Master
Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the
amount of the
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<PAGE>
Realized Loss with respect to that Mortgage
Loan will be reduced to the extent
such recoveries are applied to reduce the
Class Certificate Balance of any Class
of Certificates on any Distribution
Date.
RECONSTITUTION AGREEMENTS: The agreement or agreements entered into
by
the Servicer and MLBUSA and/or certain
third parties on the Reconstitution Date
or Dates with respect to any or all of the
Mortgage Loans serviced under the
Servicing Agreement, in connection with a
whole loan transfer or a pass-through
transfer as provided in Section 12
thereof.
RECONSTITUTION DATE: The date or dates on which any or all of
the
Mortgage Loans shall be removed from the
Servicing Agreement and reconstituted
as part of a Whole Loan Transfer or
Pass-Through Transfer pursuant to Section 12
thereof.
RECORD DATE: With respect to each Distribution Date and each Class
of
Offered Certificates, the close of business
on the last Business Day of the
month immediately preceding the month in
which the related Distribution Date
occurs.
REFINANCED MORTGAGE LOAN: A Mortgage Loan the proceeds of which
were
not used to purchase the related Mortgaged
Property.
REGULAR CERTIFICATES: Any of the Class A-1, Class A-2, Class A-3,
Class
A-4, Class A-5, Class A-6, Class A-7, Class
A-8, Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2 and Class B-3
Certificates.
REINVESTMENT AGREEMENTS: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a
bank, insurance company or other
corporation or entity (including the
Trustee).
RELIEF ACT: The Servicemembers Civil Relief Act, as amended.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the
Monthly
Payment thereof has been reduced due to the
application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning
of Section 860D of the Code.
REMIC TRUST: The segregated pool of assets, with respect to which
a
REMIC election is to be made, consisting
of: (i) each Mortgage Loan (exclusive
of payments of principal and interest due
on or before the Cut-off Date, if any,
received by the Master Servicer which shall
not constitute an asset of the Trust
Fund) as from time to time are subject to
this Agreement and all payments under
and proceeds of such Mortgage Loans
(exclusive of any prepayment fees and late
payment charges received on the Mortgage
Loans), together with all documents
included in the related Mortgage File,
subject to Section 2.01; (ii) such funds
or assets as from time to time are
deposited in the Master Servicer Collection
Account or the Distribution Account and
belonging to the Trust Fund; (iii) any
REO Property; (iv) the primary hazard
insurance policies, if any, the Primary
Mortgage Insurance Policies, if any, and
all other Insurance Policies with
respect to the Mortgage Loans; and (v) the
Depositor's interest in respect of
the representations
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<PAGE>
and warranties made by the Seller and the
Originator in the Assignment,
Assumption and Recognition Agreement as
assigned to the Trustee pursuant to
Section 2.04 hereof.
REMIC OPINION: An Opinion of Counsel stating that, under the
REMIC
Provisions, any contemplated action will
not cause the REMIC Trust to fail to
qualify as a REMIC or result in the
imposition of a tax upon the Trust Fund
(including but not limited to the tax on
prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax
on contributions to the REMIC Trust
set forth in Section 860G(d) of the
Code).
REMIC PROVISIONS: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits
which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the
Code, and related provisions, and
regulations and rulings promulgated
thereunder, as the foregoing may be in
effect from time to time.
REO PROPERTY: A Mortgaged Property acquired by the Servicer or
Master
Servicer on behalf of the Trust Fund
through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.23
in connection with a defaulted
Mortgage Loan.
REPURCHASE PROCEEDS: The Repurchase Price in connection with
any
repurchase of a Mortgage Loan by the
Originator and any cash deposit in
connection with the substitution of a
Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached
hereto
as Exhibit D.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement with respect to such Mortgage
Loan.
RESIDUAL CERTIFICATES: Any of the Class R Certificates.
RESIDUAL
INTEREST: The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of
the Code.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust
Office
(or any successor thereto), including any
Vice President, Assistant Vice
President, Trust Officer, any Assistant
Secretary, any trust officer or any
other officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and having direct
responsibility for the administration of
this Agreement, and any other officer
of the Trustee to whom a matter arising
hereunder may be referred.
RULE 144A LETTER: The certificate to be furnished by each purchaser
of
a Private Certificate (which is also a
Physical Certificate) which is a
Qualified Institutional Buyer as defined
under Rule 144A promulgated under the
Securities Act, substantially in the form
set forth as Exhibit F-3 hereto.
S&P: Standard and Poor's, a division of The McGraw-Hill
Companies, Inc.
or its successor in interest.
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<PAGE>
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month,
the
scheduled payment or payments of principal
and interest due during such month on
such Mortgage Loan which either is payable
by a Mortgagor in such month under
the related Mortgage Note or, in the case
of REO Property, would otherwise have
been payable under the related Mortgage
Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled
Payment.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: Wells Fargo Bank, N.A., or any successor
in
interest, or any successor securities
administrator appointed as herein
provided.
SECURITY AGREEMENT: With respect to a Cooperative Loan, the
agreement
creating a security interest in favor of
the originator in the related
Cooperative Stock.
SECURITY INSTRUMENT: A written instrument creating a valid first
lien
on a Mortgaged Property securing a Mortgage
Note, which may be any applicable
form of mortgage, deed of trust, deed to
secure debt or security deed, including
any riders or addenda thereto.
SELLER: Merrill Lynch Mortgage Lending, Inc., a Delaware
corporation,
or any successor in interest.
SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: With respect to any
Distribution Date, the percentage indicated
below:
<TABLE>
<CAPTION>
Senior
Accelerated
Distribution Date
Distribution Percentage
-----------------
-----------------------
<S>
<C>
March 2005
through February 2010
100%
March 2010
through February 2011
Senior Percentage, plus 70% of the Subordinate
Percentage
March 2011
through February 2012
Senior Percentage, plus 60% of the Subordinate
Percentage
March 2012
through February 2013
Senior Percentage, plus 40% of the Subordinate
Percentage
March 2013
through February 2014
Senior Percentage, plus 20% of the Subordinate
Percentage
March 2014 and
thereafter
Senior Percentage
</TABLE>
provided, however, that any scheduled
reduction to the Senior Accelerated
Distribution Percentage described above
shall not occur as of any Distribution
Date unless either (a)(i)(X) the
outstanding principal balance of Mortgage Loans
delinquent 60 days or more (including for
this purpose any such Mortgage Loans
in foreclosure or bankruptcy and such
Mortgage Loans with respect to which the
related Mortgaged Property has been
acquired by the Trust) averaged over the
last six months as a percentage of the
aggregate outstanding Class Certificate
Balance of the
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<PAGE>
Class M Certificates and the Class B
Certificates, is less than 50%, or (Y) the
outstanding principal balance of Mortgage
Loans delinquent 60 days or more
averaged over the last six months, as a
percentage of the aggregate outstanding
principal balance of all Mortgage Loans
averaged over the last six months, does
not exceed 2% and (ii) Realized Losses on
the Mortgage Loans to date for such
Distribution Date, if occurring during the
sixth, seventh, eighth, ninth, or
tenth year (or any year thereafter) after
the Closing Date, are less than 30%,
35%, 40%, 45% or 50%, respectively, of the
sum of the Initial Class Certificate
Balances of the Subordinate Certificates;
or (b) (i) the outstanding principal
balance of Mortgage Loans delinquent 60
days or more (including for this purpose
any such Mortgage Loans in foreclosure or
bankruptcy and such Mortgage Loans
with respect to which the related Mortgaged
Property has been acquired by the
Trust) averaged over the last six months,
as a percentage of the aggregate
outstanding principal balance of all
Mortgage Loans averaged over the last six
months, does not exceed 4%, and (ii)
Realized Losses on the Mortgage Loans to
date for such Distribution Date, if
occurring during the sixth, seventh, eighth,
ninth or tenth year (or any year
thereafter) after the Closing Date, are less
than 10%, 15%, 20%, 25% or 30%,
respectively, of the sum of the initial Class
Certificate Balances of the Subordinate
Certificates.
In addition, on any Distribution Date on or after the Distribution
Date
occurring in March 2008, if the Subordinate
Percentage is equal to or greater
than two times the initial Subordinate
Percentage, and (a) the outstanding
principal balance of the Mortgage Loans
delinquent 60 days or more (including
for this purpose any such Mortgage Loans in
foreclosure and such Mortgage Loans
with respect to which the related Mortgaged
Property has been acquired by the
Trust), averaged over the last six months,
as a percentage of the Subordinate
Percentage for that Distribution Date times
the aggregate Stated Principal
Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized
Losses on the Mortgage Loans do not exceed
20% of the initial Subordinate
Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as
of the Cut-off Date, then, in each case,
the Senior Accelerated Distribution
Percentage for such Distribution Date will
equal the Senior Percentage.
SENIOR CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class
A-4,
Class A-5, Class A-6, Class A-7 and Class
A-8 Certificates.
SENIOR PERCENTAGE: As of any Distribution Date, the lesser of 100%
and
a fraction, expressed as a percentage, the
numerator of which is the aggregate
Class Certificate Balance of the Class A
Certificates immediately prior to such
Distribution Date and the denominator of
which is the aggregate Stated Principal
Balance of all of the Mortgage Loans or
related REO Properties immediately prior
to such Distribution Date.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date,
the
lesser of (a) the balance of the Available
Distribution Amount remaining after
the distribution of all amounts required to
be distributed pursuant to subclause
FIRST and SECOND of Section 6.01(A) and (b)
the sum of the following:
(A) the Senior Percentage for such Distribution Date
times the sum of the following:
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<PAGE>
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan, whether or not received on or prior to the
related Determination Date, minus the principal portion of any
Debt Service Reduction which together with other Bankruptcy
Losses exceeds the Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03 hereof or pursuant to the
Servicing Agreement; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or disposition of a Mortgage Loan, including
without limitation Insurance Proceeds, Liquidation Proceeds
and REO Proceeds) received during the related Prepayment
Period to the extent applied by the Servicer as recoveries of
principal of the related Mortgage Loan pursuant to Servicing
Agreement;
(B) with respect to the liquidation or other
disposition of a Mortgage Loan which occurred during the
related
Prepayment Period and did not result in any Excess Special
Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary
Losses, an amount equal to the lesser of (a) the Senior Percentage
for
such Distribution Date times the Stated Principal Balance of
such
Mortgage Loan and (b) the Senior Accelerated Distribution
Percentage
for such Distribution Date times the related unscheduled
collections
(including without limitation Insurance Proceeds, Liquidation
Proceeds
and REO Proceeds) to the extent applied by the Servicer or the
Master
Servicer as recoveries of principal of the related Mortgage
Loan
pursuant to the Servicing Agreement or this Agreement;
(C) the Senior Accelerated Distribution Percentage
for such Distribution Date times the aggregate of all Principal
Prepayments in Full and Curtailments received in the related
Prepayment
Period with respect to the Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C)
of this definition, as determined for any previous Distribution
Date,
which remain unpaid after application of amounts previously
distributed
pursuant to this clause (D) to the extent that such amounts are
not
attributable to Realized Losses which have been allocated to the
Class
M Certificates or Class B Certificates;
SERVICER: With respect to each Mortgage Loan, Washington Mutual
Bank,
FA.
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan, the
date
set forth in the Servicing Agreement as the
Remittance Date (as such term is
defined in the Servicing Agreement).
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<PAGE>
SERVICING ADVANCES: All customary, reasonable and necessary
"out-of-pocket" costs and expenses incurred
by the Servicer in the performance
of its servicing obligations, including,
but not limited to, the cost of (i)
preservation, restoration, protection and
repair of a Mortgaged Property or
Cooperative Unit, as applicable, (ii) any
enforcement or judicial proceedings
with respect to a Mortgage Loan, including
foreclosure actions and (iii) the
management and liquidation of REO
Property.
SERVICING AGREEMENT: The Master Mortgage Loan Purchase and
Servicing
Agreement dated as of June 1, 2001 among
MLBUSA, as purchaser, Washington Mutual
Bank, FA, as seller, Washington Mutual Bank
fsb, as seller, Washington Mutual
Bank, as seller and Washington Mutual Bank,
FA, as servicer, and the
modifications thereto provided in Annex A
to the Warranty Bill of Sale dated
April 26, 2004, among MLBUSA, as purchaser,
Washington Mutual Bank, FA, as
seller, Washington Mutual Bank, as seller,
and Washington Mutual Bank, FA, as
servicer.
SERVICING FEE: With respect to each Mortgage Loan, the amount of
the
annual servicing fee the Purchaser shall
pay to the Servicer, which shall, for
each month, be equal to one-twelfth of the
product of (a) the related Servicing
Fee Rate and (b) the unpaid principal
balance of the Mortgage Loan. Such fee
shall be payable monthly, computed on the
basis of the same principal amount and
period respectively which any related
interest payment on a Mortgage Loan is
computed. The obligation of the Trust Fund
to pay the Servicing Fee is limited
to, and payable solely from, the interest
portion (including recoveries with
respect to interest from Liquidation
Proceeds, Insurance Proceeds, condemnation
proceeds and other proceeds, to the extent
permitted by this Agreement) of
related Monthly Payment collected by the
Servicer, or as otherwise proved under
Section 11.05. If the Preliminary Servicing
Period includes any partial month,
the Servicing Fee for such month shall be
pro rated at a per diem rate based
upon a 30-day month. If the Index and/or
Gross Margin are adjusted as provided
in the related Mortgage Note, the Servicing
Fee shall be the rate per annum in
effect immediately prior to such
adjustment.
SERVICING FEE RATE: The per annum rate at which the Servicing
Fee
accrues, which rate shall be as calculated
or set forth in the related final
Mortgage Loan Schedule.
SERVICING OFFICER: Any officer of the Master Servicer involved in,
or
responsible for, the administration and
servicing of the Mortgage Loans whose
name and specimen signature appear on a
list of servicing officers furnished to
the Trustee by the Master Servicer, as such
list may be amended from time to
time.
SPECIAL HAZARD LOSS COVERAGE AMOUNT: As of any Distribution Date,
an
amount equal to $10,925,146 minus the sum
of (i) the aggregate amount of Special
Hazard Losses allocated solely to one or
more specific Classes of Certificates
in accordance with Section 6.02 and (ii)
the Adjustment Amount (as defined
below) as most recently calculated. For
each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the
amount, if any, by which the amount
calculated in accordance with the preceding
sentence (without giving effect to
the deduction of the Adjustment Amount for
such anniversary) exceeds the greater
of (A) the greatest of (i) twice the
outstanding principal balance of the
Mortgage Loan in the Trust Fund which has
the largest
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outstanding principal balance on the
Distribution Date immediately preceding
such anniversary, (ii) the product of 1.00%
multiplied by the outstanding
principal balance of all Mortgage Loans on
the Distribution Date immediately
preceding such anniversary and (iii) the
aggregate outstanding principal balance
(as of the immediately preceding
Distribution Date) of the Mortgage Loans in any
single five-digit California zip code area
with the largest amount of Mortgage
Loans by aggregate principal balance as of
such anniversary and (B) the greater
of (i) the product of 0.50% multiplied by
the outstanding principal balance of
all Mortgage Loans on the Distribution Date
immediately preceding such
anniversary multiplied by a fraction, the
numerator of which is equal to the
aggregate outstanding principal balance (as
of the immediately preceding
Distribution Date) of all of the Mortgage
Loans secured by Mortgaged Properties
located in the State of California divided
by the aggregate outstanding
principal balance (as of the immediately
preceding Distribution Date) of all of
the Mortgage Loans, expressed as a
percentage, and the denominator of which is
equal to 70.51% (which percentage is equal
to the percentage of Mortgage Loans
initially secured by Mortgaged Properties
located in the State of California)
and (ii) the aggregate outstanding
principal balance (as of the immediately
preceding Distribution Date) of the largest
Mortgage Loan secured by a Mortgaged
Property located in the State of
California.
The Special Hazard Amount may be further reduced by the
Depositor
(including accelerating the manner in which
coverage is reduced) provided that
prior to any such reduction, the Depositor
shall (i) obtain written confirmation
from each Rating Agency that such reduction
shall not reduce the rating assigned
to any Class of Certificates by such Rating
Agency below the lower of the
then-current rating or the rating assigned
to such Certificates as of the
Closing Date by such Rating Agency and (ii)
provide a copy of such written
confirmation to the Trustee.
SPECIAL HAZARD LOSSES: Realized Losses in respect of Special
Hazard
Mortgage Loans as reported by the Servicer
to the Master Servicer.
SPECIAL HAZARD MORTGAGE LOAN: A Liquidated Mortgage Loan as to
which
the ability to recover the full amount due
thereunder was substantially impaired
by a hazard not insured against under a
standard hazard insurance policy.
STARTUP DAY: February
28, 2005.
STATED PRINCIPAL BALANCE: With respect to any Mortgage Loan and
Due
Date, the unpaid principal balance of such
Mortgage Loan as of such Due Date, as
specified in the amortization schedule at
the time relating thereto (before any
adjustment to such amortization schedule by
reason of any moratorium or similar
waiver or grace period), after giving
effect to any previous partial prepayments
and Liquidation Proceeds received and to
the payment of principal due on such
Due Date and irrespective of any
delinquency in payment by the related
Mortgagor.
STAYED FUNDS: If the Master Servicer is the subject of a
proceeding
under the federal Bankruptcy Code and the
making of a remittance by the Master
Servicer pursuant to this Agreement is
prohibited by Section 362 of the federal
Bankruptcy Code, funds which are in the
custody of the Master Servicer, a
trustee in bankruptcy or a federal
bankruptcy court and should have been the
subject of such remittance absent such
prohibition.
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SUBORDINATE CERTIFICATES: The Class M-1, Class M-2, Class M-3,
Class
B-1, Class B-2 and Class B-3
Certificates.
SUBORDINATE PERCENTAGE: For any Distribution Date, the
difference
between 100% and the Senior Percentage for
such date.
SUBORDINATE PREPAYMENT PERCENTAGE: With respect to any
Distribution
Date and each Class of Subordinate
Certificates, under the applicable
circumstances set forth below, the
respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date
in March 2010 (unless the Class Certificate Balances of the
Senior
Certificates have been reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) does not
apply, and on which any Class of Subordinate Certificates are
outstanding:
(a) in the case of the Class of Subordinate
Certificates then outstanding with the Highest Priority and
each other Class of Subordinate Certificates for which the
related Prepayment Distribution Trigger has been satisfied, a
fraction, expressed as a percentage, the numerator of which is
the Class Certificate Balance of such Class immediately prior
to such date and the denominator of which is the sum of the
Class
Certificate Balances immediately prior to such date of
(1) the Class of Subordinate Certificates then outstanding
with the Highest Priority and (2) all other Classes of
Subordinate Certificates for which the respective Prepayment
Distribution Triggers have been satisfied; and
(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers
have not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in
Section
6.01 of this Agreement (determined without regard to the proviso to
the
definition of "Subordinate Principal Distribution Amount") would
result
in a distribution in respect of principal of any Class or Classes
of
Subordinate Certificates in an amount greater than the remaining
Class
Certificate Balance thereof (any such Class, a "Maturing Class"),
then:
(a) the Subordinate Prepayment Percentage of each Maturing Class
shall
be reduced to a level that, when applied as described above,
would
exactly reduce the Class Certificate Balance of such Class to zero;
(b)
the Subordinate Prepayment Percentage of each other Class of
Subordinate Certificates (any such Class, a "Non-Maturing Class")
shall
be recalculated in accordance with the provisions in paragraph
(ii)
above, as if the Class Certificate Balance of each Maturing Class
had
been reduced to zero (such percentage as recalculated, the
"Recalculated Percentage"); (c) the total amount of the reductions
in
the Subordinate Prepayment Percentages of the Maturing Class or
Classes
pursuant to clause (a) of this sentence, expressed as an
aggregate
percentage, shall be allocated among the Non-Maturing Classes
in
proportion to their respective Recalculated Percentages (the
portion of
such aggregate reduction so allocated to any Non- Maturing Class,
the
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"Adjustment Percentage"); and (d) for purposes of such
Distribution
Date, the Subordinate Prepayment Percentage of each Non-Maturing
Class
shall be equal to the sum of (1) the Subordinate Prepayment
Percentage
thereof, calculated in accordance with the provisions in paragraph
(ii)
above as if the Class Certificate Balance of each Maturing Class
had
not been reduced to zero, plus (2) the related Adjustment
Percentage.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date and each Class of Class M
Certificates and Class B
Certificates, the sum of the following:
(i) the product of (x) the related Class M Percentage
or Class B Percentage for such Class and (y) the aggregate of
the
following amounts:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan, whether or not received on or prior to the
related Determination Date, minus the principal portion of any
Debt Service Reduction which together with other Bankruptcy
Losses exceeds the Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or other disposition of a Mortgage Loan,
including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the Servicer as
recoveries of principal of the related Mortgage Loan pursuant
to the Servicing Agreement;
(ii) such Class's pro rata share, based on the Class
Certificate Balance of each Class of Class M Certificates and Class
B
Certificates then outstanding, of, with respect to each Mortgage
Loan
for which a liquidation or other disposition occurred during
the
related Prepayment Period and did not result in any Excess Losses,
an
amount equal to the related unscheduled collections (including
without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds)
to the extent applied by the Servicer as recoveries of principal of
the
related Mortgage Loan pursuant to the Servicing Agreement, to
the
extent such collections are not otherwise distributed to the
Senior
Certificates;
(iii) the product of (x) the related Subordinate
Prepayment Percentage for such Distribution Date and (y) the
aggregate
of all Principal Prepayments in Full and Curtailments of the
Mortgage
Loans received in the related Prepayment Period, to the extent
not
payable to the Senior Certificates; and
(iv) any amounts described in clauses (i), (ii) and
(iii) as determined for any previous Distribution Date, that
remain
undistributed to the extent that such amounts
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are not
attributable to Realized Losses which have been allocated to a
Class of Subordinate Certificates;
provided, however, that such amount shall
in no event exceed the outstanding
Class Certificate Balance of such Class of
Certificates immediately prior to
such date.
SUBORDINATION: As defined in Section 6.02(c).
SUBSEQUENT RECOVERIES: Any amount recovered by a Servicer or the
Master
Servicer (net of reimbursable expenses)
with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss
was incurred after the liquidation or
disposition of such Mortgage Loan.
SUBSTITUTE MORTGAGE LOAN: A mortgage loan tendered to the
Trustee
pursuant to the Servicing Agreement, the
Assignment, Assumption and Recognition
Agreement or Section 2.04 of this
Agreement, as applicable, in each case, (i)
which has an Outstanding Principal Balance,
after application of all scheduled
payments of principal and interest due
during or prior to the month of
substitution, not in excess of the Stated
Principal Balance of the Mortgage Loan
for which it is to be substituted as of the
Due Date in the calendar month
during which the substitution occurs, (ii)
which has a Mortgage Interest Rate
not less than (and not more than one
percentage point in excess of) the Mortgage
Interest Rate of such Mortgage Loan, (iii)
which has a Net Mortgage Rate equal
to or greater than the Net Mortgage Rate of
such Mortgage Loan, (iv) which has a
remaining term to maturity not greater than
(and not more than one year less
than) that of such Mortgage Loan, (v) which
has the same Due Date as the Due
Date on such Mortgage Loan, (vi) which has
a Loan-to-Value Ratio as of the date
of substitution equal to or lower than the
Loan-to-Value Ratio of such Mortgage
Loan as of such date, (vii) be covered
under a Primary Insurance Policy if such
Substitute Mortgage Loan has a
Loan-to-Value Ratio in excess of 80%, (viii)
conform to each non-statistical
representation and warranty set forth in Section
7.02 of the Servicing Agreement and (ix) be
the same type of mortgage loan (i.e.
adjustable rate with the same Gross Margin
and Index as the Deleted Mortgage
Loan). In the event that one or more
mortgage loans are substituted for one or
more Mortgage Loans, the amounts described
in clause (i) hereof shall be
determined on the basis of aggregate
principal balances, the Mortgage Interest
Rates described in clause (ii) hereof shall
be determined on the basis of
weighted average Mortgage Interest Rates,
the Net Mortgage Rates described in
clause (iii) hereof shall be determined on
the basis of weighted average Net
Mortgage Rates, the terms described in
clause (iv) shall be determined on the
basis of weighted average remaining terms
to maturity, the Loan-to-Value Ratios
described in clause (vi) hereof shall be
satisfied as to each such mortgage loan
and, except to the extent otherwise
provided in this sentence, the
representations and warranties described in
clause (viii) hereof must be
satisfied as to each Substitute Mortgage
Loan or in the aggregate, as the case
may be.
TAX ADMINISTRATION AND TAX MATTERS PERSON: The Securities
Administrator
or any successor thereto or assignee
thereof shall serve as tax administrator
hereunder and as agent for the Tax Matters
Person. The Holder of each Class of
Residual Certificates shall be the Tax
Matters Person for the REMIC Trust, as
more particularly set forth in Section 9.12
hereof.
TRUSTEE: Wachovia Bank, National Association, or its successor
in
interest, or any successor trustee
appointed as herein provided.
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TRUST FUND: The REMIC Trust.
UNDERCOLLATERALIZED AMOUNT: On any Distribution Date, the excess of
(x)
the aggregate Class Certificate Balance of
any Class or Classes of Senior
Certificates immediately prior to such
Distribution Date over (y) the aggregate
Stated Principal Balance of the Mortgage
Loans as of the beginning of the
related Due Period.
UNDERCOLLATERALIZED SENIOR CERTIFICATES: As defined in Section
6.01(D).
UNDERWRITING GUIDELINES: The Underwriting Guidelines of the
Originator,
attached to the Servicing Agreement as
Exhibit 10, as amended from time to time.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or
related
REO Property such that the complete
restoration of such Mortgaged Property or
related REO Property is not fully
reimbursable by the hazard insurance policies
required to be maintained pursuant the
Servicing Agreement, without regard to
whether or not such policy is
maintained.
UNITED STATES PERSON: A citizen or resident of the United States,
a
corporation or partnership (including an
entity treated as a corporation or
partnership for federal income tax
purposes) created or organized in, or under
the laws of, the United States or any state
thereof or the District of Columbia
(except, in the case of a partnership, to
the extent provided in regulations),
provided that, for purposes solely of the
Class R Certificates, no partnership
or other entity treated as a partnership
for United States federal income tax
purposes shall be treated as a United
States Person unless all persons that own
an interest in such partnership either
directly or through any entity that is
not a corporation for United States federal
income tax purposes are United
States Persons, or an estate whose income
is subject to United States federal
income tax regardless of its source, or a
trust if a court within the United
States is able to exercise primary
supervision over the administration of the
trust and one or more such United States
Persons have the authority to control
all substantial decisions of the trust. To
the extent prescribed in regulations
by the Secretary of the Treasury, which
have not yet been issued, a trust which
was in existence on August 20, 1996 (other
than a trust treated as owned by the
grantor under subpart E of part I of
subchapter J of chapter 1 of the Code), and
which was treated as a United States person
on August 20, 1996 may elect to
continue to be treated as a United States
person notwithstanding the previous
sentence.
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. The Voting Rights allocated
among Holders of such Certificates
outstanding shall be the fraction, expressed
as a percentage, the numerator of which is
the aggregate Class Certificate
Balance of all the Certificates of such
Class then outstanding and the
denominator of which is the aggregate Class
Certificate Balance of all the
Certificates then outstanding (other than
the Class R Certificates). 99.50% of
all Voting Rights will be allocated among
all holders of the Certificates (other
than the Class R Certificates) in
proportion to their then outstanding Class
Certificate Balances, and 0.5% of all
Voting Rights will be allocated among the
holders of the Class R Certificates in
proportion to the Percentage Interests
evidenced by their Certificates; provided,
however, that any Certificate
registered in the name of the Master
Servicer, the Depositor or the Trustee or
any of their respective affiliates shall
not be included in the calculation of
Voting Rights.
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Section 1.02 ACCOUNTING.
Unless otherwise specified herein, for the purpose of any
definition or
calculation, whenever amounts are required
to be netted, subtracted or added or
any distributions are taken into account
such definition or calculation and any
related definitions or calculations shall
be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 CONVEYANCE OF MORTGAGE LOANS TO TRUSTEE. (a) The
Depositor
concurrently with the execution and
delivery of this Agreement, sells, transfers
and assigns to the Trust without recourse
all its right, title and interest in
and to (i) the Mortgage Loans identified in
the Mortgage Loan Schedule,
including all interest and principal due
with respect to the Mortgage Loans
after the Cut-off Date, but excluding any
payments of principal and interest due
on or prior to the Cut-off Date; (ii) such
assets as shall from time to time be
credited or are required by the terms of
this Agreement to be credited to the
Master Servicer Collection Account, (iii)
such assets relating to the Mortgage
Loans as from time to time may be held by
the Servicer in Protected Accounts,
the Master Servicer in the Master Servicer
Collection Account and the Trustee in
the Distribution Account for the benefit of
the Trustee on behalf of the Regular
Certificateholders, (iv) any REO Property,
(v) the Required Insurance Policies
and any amounts paid or payable by the
insurer under any Insurance Policy (to
the extent the mortgagee has a claim
thereto), (vi) the Assignment, Assumption
and Recognition Agreement to the extent
provided in Subsection 2.03(a), (vii)
the rights with respect to the Servicing
Agreement as assigned to the Depositor
on behalf of the Certificateholders by the
Assignment, Assumption and
Recognition Agreement and (viii) any
proceeds of the foregoing. Although it is
the intent of the parties to this Agreement
that the conveyance of the
Depositor's right, title and interest in
and to the Mortgage Loans and other
assets in the Trust Fund pursuant to this
Agreement shall constitute a purchase
and sale and not a loan, in the event that
such conveyance is deemed to be a
loan, it is the intent of the parties to
this Agreement that the Depositor shall
be deemed to have granted to the Trustee a
first priority perfected security
interest in all of the Depositor's right,
title and interest in, to and under
the Mortgage Loans and other assets in the
Trust Fund, and that this Agreement
shall constitute a security agreement under
applicable law.
(b) In connection with the above transfer and assignment, the
Depositor
hereby deposits with the Trustee or the
Custodian, as its agent, the following
documents or instruments (I) with respect
to each Mortgage Loan, other than a
Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following
form: "Pay to the order of Wachovia Bank, National Association,
as
Trustee for the registered holders of the Merrill Lynch
Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series
2005-A2,
without recourse," with all prior and intervening endorsements
showing
a complete chain of endorsement from the originator to the Person
so
endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage
has
been recorded;
(iii) an original Assignment of the Mortgage executed in the
following form: "Wachovia Bank, National Association, as Trustee
for
the registered holders of the Merrill Lynch Mortgage Investors,
Inc.,
Mortgage Pass-Through Certificates, Series 2005-A2.
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(iv) the original recorded Assignment or Assignments of the
Mortgage showing a complete chain of assignment from the originator
to
the Person assigning the Mortgage to the Trustee as contemplated by
the
immediately preceding clause (iii), if applicable and only to
the
extent available to the Depositor with evidence of recording
thereon;
(v) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of
recording
thereon, if any;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel
mortgage or equivalent document executed in connection with the
Mortgage; and
(ix) the original power of attorney, if applicable;
and (II) with respect to each Mortgage Loan
that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following
form: "Pay to the order of Wachovia Bank, National Association,
as
Trustee for the registered holders of the Merrill Lynch
Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series
2005-A2,
without recourse," with all prior and intervening endorsements
showing
a complete chain of endorsement from the originator to the Person
so
endorsing to the Trustee;
(ii) the original duly executed assignment of Security
Agreement
to the Trustee;
(iii) the acknowledgment copy of the original executed Form
UCC-1 (or certified copy thereof) with respect to the Security
Agreement, and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form
UCC-3 with respect to the Security Agreement, indicating the
Trustee as
the assignee of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank
attached;
(vi) the original collateral assignment of the proprietary
lease by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
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(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if
any,
showing,
to the extent available, an unbroken chain of the related
Mortgage Loan to the Trustee, together with a copy of the related
Form
UCC-3 with evidence of filing thereon; and
(ix) the originals of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the
foregoing, the Depositor may deliver the
following documents, under the
circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to
clauses (b)(I)(i) and (b)(II)(i)
endorsed in blank, provided that the
endorsement is completed within 60 days of
the Closing Date; (x) in lieu of the
original Mortgage, assignments to the
Trustee or intervening assignments thereof
which have been delivered, are being
delivered or will, upon receipt of
recording information relating to the
Mortgage required to be included thereon,
be delivered to recording offices for
recording and have not been returned to the
Depositor in time to permit their
delivery as specified above, the Depositor
may deliver a true copy thereof with
a certification by the Depositor on the
face of such copy, substantially as
follows: "Certified to be a true and
correct copy of the original, which has
been transmitted for recording"; and (y) in
lieu of the Mortgage, assignment to
the Trustee or intervening assignments
thereof, if the applicable jurisdiction
retains the originals of such documents (as
evidenced by a certification from
the Depositor or the Master Servicer, to
such effect) the Depositor may deliver
photocopies of such documents containing an
original certification by the
judicial or other governmental authority of
the jurisdiction where such
documents were recorded; and provided,
further, however, that in the case of
Mortgage Loans which have been prepaid in
full after the Cut-off Date and prior
to the Closing Date, the Depositor, in lieu
of delivering the above documents,
may deliver to the Trustee a certification
to such effect and shall deposit all
amounts paid in respect of such Mortgage
Loans in the Distribution Account on
the Closing Date. The Depositor shall
deliver such original documents (including
any original documents as to which
certified copies had previously been
delivered) to the Trustee promptly after
they are received. The Depositor shall
cause, at its expense, the assignment of
the Mortgage to the Trustee to be
recorded not later than 180 days after the
Closing Date, unless such recordation
is not required by the Rating Agencies or
an Opinion of Counsel has been
provided as set forth below in this Section
2.01. With respect to the
Cooperative Loans, the Depositor will,
promptly after the Closing Date, cause
the related financing statements (if not
yet filed) and an assignment thereof
from the Depositor to the Trustee to be
filed in the appropriate offices. The
Depositor need not cause to be recorded any
assignment in any jurisdiction under
the laws of which, as evidenced by an
Opinion of Counsel delivered by the
Depositor to the Trustee and the Rating
Agencies, the recordation of such
assignment is not necessary to protect the
Trustee's interest in the related
Mortgage Loan; provided, however,
notwithstanding the delivery of any Opinion of
Counsel, each assignment shall be submitted
for recording by the Depositor in
the manner described above, at no expense
to the Trust Fund, the Trustee or the
Custodian, upon the earliest to occur of:
(i) reasonable direction by the
Holders of Certificates evidencing
Percentage Interests aggregating not less
than 25% of the Trust Fund, (ii) the
occurrence of an Event of Default, (iii)
the occurrence of a bankruptcy, insolvency
or foreclosure relating to the
Depositor, (iv) the occurrence of a
servicing transfer as described in Section
8.02 hereof and (v) with respect to any one
assignment, the occurrence of a
bankruptcy, insolvency or foreclosure
relating to the
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Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the
Depositor fails to pay the cost of
recording the assignments, such expense will
be paid by the Trustee and the Trustee
shall be reimbursed for such expenses by
the Trust Fund in accordance with Section
9.05.
If any original Mortgage Note referred to in Section 2.01(b)(I)(i)
or
2.01(b)(II)(i) above cannot be located, the
obligations of the Depositor to
deliver such documents shall be deemed to
be satisfied upon delivery to the
Trustee of a photocopy of such Mortgage
Note, if available, with a lost note
affidavit. If any of the original Mortgage
Notes for which a lost note affidavit
was delivered to the Trustee is
subsequently located, such original Mortgage
Note shall be delivered to the Trustee
within three Business Days.
(c) The parties hereto agree that it is not intended that any
mortgage
loan be included in the Trust that is
either (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership
Act effective November 27, 2003, (ii) a
"High-Cost Home Loan" as defined in the New
Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High
Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004
or (iv) a "High-cost Home Loan" as defined
by the Indiana High Cost Home Loan
Law effective January 1, 2005.
Section 2.02 ACCEPTANCE OF MORTGAGE LOANS BY TRUSTEE.
(a) The Trustee acknowledges the sale, transfer and assignment of
the
Trust to it by the Depositor and its
receipt thereof, subject to further review
and the exceptions which may be noted
pursuant to the procedures described
below, and declares that it, or the
Custodian on its behalf, holds the documents
(or certified copies thereof) delivered to
it pursuant to Section 2.01, and
declares that it will continue to hold
those documents and any amendments,
replacements or supplements thereto and all
other assets of the Trust Fund
delivered to it as Trustee in trust for the
use and benefit of all present and
future Holders of the Certificates. On or
before the Closing Date (or, with
respect to any Substitute Mortgage Loan,
within five Business Days after the
receipt by the Trustee or Custodian
thereof), the Trustee agrees, for the
benefit of the Certificateholders, to
review or cause to be reviewed by the
Custodian on its behalf (under the
Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver,
or cause to be executed and
delivered, to the Depositor on the Closing
Date an Initial Certification. In
conducting such review, the Trustee or
Custodian will certify as to each
Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan
specifically identified in the exception
report annexed thereto as not being covered
by such certification), (i) all
documents constituting part of such
Mortgage File (other than such documents
described in Section 2.01(b)(I)(iii))
required to be delivered to it pursuant to
this Agreement are in its possession,
provided that with respect to the
documents described in Section
2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent
the Trustee or the Custodian on its
behalf has actual knowledge that such
documents exist, (ii) such documents have
been reviewed by it and are not torn,
mutilated, defaced or otherwise altered
(except if initialed by the obligor) and
appear to relate on their face to such
Mortgage Loan, (iii) based on its
examination and only as to the foregoing, the
information set forth in the Mortgage Loan
Schedule corresponding to the loan
number for the Mortgage Loan, the
Mortgagor's name, including the street address
but excluding the zip code, the Mortgage
Interest Rate and the
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original principal balance of the Mortgage
Loan accurately reflects information
set forth in the Mortgage File and (iv)
with respect to Mortgage Loans with a
Mortgage Interest Rate subject to
adjustment, the Gross Margin and the lifetime
cap for such Mortgage Loan. In performing
any such review, the Trustee, or the
Custodian, as its agent, may conclusively
rely on the purported due execution
and genuineness of any such document and on
the purported genuineness of any
signature thereon. Notwithstanding anything
to the contrary in this Agreement,
it is herein acknowledged that, in
conducting such review, the Trustee or the
Custodian on its behalf is under no duty or
obligation to inspect, review or
examine any such documents, instruments,
certificates or other papers to
determine whether they are genuine,
enforceable, or appropriate for the
represented purpose or whether they have
actually been recorded or that they are
other than what they purport to be on their
face, or to determine whether any
Person executing any documents is
authorized to do so or whether any signature
is genuine. If the Trustee or the
Custodian, as its agent, finds any document
constituting part of the Mortgage File not
to have been executed or received, or
to be unrelated to the Mortgage Loans
identified in Exhibit B or to appear to be
defective on its face, the Trustee or the
Custodian, as its agent, shall
promptly notify the Seller. In accordance
with the representation made by the
Seller in the Assignment, Assumption and
Recognition Agreement that the Seller
has delivered to the Depositor all
documents required to be delivered in
accordance with Section 6.03 of the
Servicing Agreement, the Seller shall
correct or cure any such defect within
ninety (90) days from the date of notice
from the Trustee or the Custodian, as its
agent, of the defect and if the Seller
fails to correct or cure the defect within
such period, and such defect
materially and adversely affects the
interests of the Certificateholders in the
related Mortgage Loan, the Trustee, shall
enforce the Seller's obligation
pursuant to the representation made by the
Seller in the Assignment, Assumption
and Recognition Agreement, within 90 days
from the Trustee's or the Custodian's
notification, to purchase such Mortgage
Loan at the Purchase Price; provided
that, if such defect would cause the
Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3)
of the Code, any such cure or
repurchase must occur within 90 days from
the date such breach was discovered;
provided, however, that if such defect
relates solely to the inability of the
Seller to deliver the original Security
Instrument or intervening assignments
thereof, or a certified copy because the
originals of such documents, or a
certified copy have not been returned by
the applicable jurisdiction, the Seller
shall not be required to purchase such
Mortgage Loan if the Seller delivers such
original documents or certified copy
promptly upon receipt, but in no event
later than 360 days after the Closing Date.
The foregoing repurchase obligation
shall not apply in the event that the
Seller cannot deliver such original or
copy of any document submitted for
recording to the appropriate recording office
in the applicable jurisdiction because such
document has not been returned by
such office; provided that the Seller shall
instead deliver a recording receipt
of such recording office or, if such
receipt is not available, a certificate
confirming that such documents have been
accepted for recording, and delivery to
the Trustee or the Custodian, as its agent,
shall be effected by the Seller
within thirty days of its receipt of the
original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or
the
Custodian, as its agent, will review, for
the benefit of the Certificateholders,
the Mortgage Files delivered to it and will
execute and deliver or cause to be
executed and delivered to the Depositor a
Final Certification. In conducting
such review, the Trustee or the Custodian,
as its agent, will certify as to each
Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan
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paid in full or any Mortgage Loan
specifically identified in the exception
report annexed thereto as not being covered
by such certification), that (i) all
documents constituting part of such
Mortgage File (other than such documents
described in Section 2.01(b)(I)(v) and
(ix)) required to be delivered to it
pursuant to this Agreement are in its
possession, provided that with respect to
the documents described in Section
2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent
the Trustee or the Custodian on its
behalf has actual knowledge that such
documents exist, (ii) such documents have
been reviewed by it and are not torn,
mutilated, defaced or otherwise altered
(except if initialed by the obligor) and
appear regular on their face and relate
to such Mortgage Loan, (iii) based on its
examination and only as to the
foregoing, the information set forth in the
Mortgage Loan Schedule corresponding
to the loan number for the Mortgage Loan,
the Mortgagor's name, including the
street address but excluding the zip code,
the Mortgage Interest Rate and the
original principal balance of the Mortgage
Loan accurately reflects information
set forth in the Mortgage File. In
performing any such review, the Trustee, or
the Custodian, as its agent, may
conclusively rely on the purported due
execution and genuineness of any such
document and on the purported genuineness
of any signature thereon. Notwithstanding
anything to the contrary in this
Agreement, it is herein acknowledged that,
in conducting such review, the
Trustee or the Custodian on its behalf is
under no duty or obligation (i) to
inspect, review or examine any such
documents, instruments, certificates or
other papers to determine whether they are
genuine, enforceable, or appropriate
for the represented purpose or whether they
have actually been recorded or that
they are other than what they purport to be
on their face, or to determine
whether any Person executing any documents
is authorized to do so or whether any
signature is genuine. If the Trustee or the
Custodian, as its agent, finds any
document constituting part of the Mortgage
File not to have been executed or
received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to
appear to be defective on its face, the
Trustee or the Custodian, as its agent,
shall promptly notify the Seller. In
accordance with the representation made by
the Seller in the Assignment, Assumption
and Recognition Agreement to deliver
the mortgage loans in accordance with
Section 6.03 of the Servicing Agreement,
the Seller shall correct or cure any such
defect within 90 days from the date of
notice from the Trustee of the defect and
if the Seller is unable to cure such
defect within such period, and if such
defect materially and adversely affects
the interests of the Certificateholders in
the related Mortgage Loan, the
Trustee shall enforce the Seller's
obligation under the Assignment, Assumption
and Recognition Agreement to purchase such
Mortgage Loan at the Purchase Price,
provided, however, that if such defect
relates solely to the inability of the
Seller to deliver the original Security
Instrument or intervening assignments
thereof, or a certified copy, because the
originals of such documents or a
certified copy, have not been returned by
the applicable jurisdiction, the
Seller shall not be required to purchase
such Mortgage Loan, if the Seller
delivers such original documents or
certified copy promptly upon receipt, but in
no event later than 360 days after the
Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller
in
accordance with Subsections 2.02(a) or (b)
above, the Seller shall remit to the
Master Servicer the Purchase Price for
deposit in the Master Servicer Collection
Account and the Seller shall provide to the
Trustee written notification
detailing the components of the Purchase
Price. Upon deposit of the Purchase
Price in the Master Servicer Collection
Account, the Depositor shall notify the
Trustee and the Custodian and the Trustee
or the Custodian, as its agent (upon
receipt of a Request for Release in the
form of Exhibit D attached hereto with
respect to such Mortgage Loan), shall
release to the
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Seller the related Mortgage File and the
Trustee shall execute and deliver all
instruments of transfer or assignment,
without recourse, furnished to it by the
Seller as are necessary to vest in the
Seller title to and rights under the
Mortgage Loan. Such purchase shall be
deemed to have occurred on the date on
which the Purchase Price in available funds
is received by the Trustee. The
Trustee shall amend the Mortgage Loan
Schedule, which was previously delivered
to it by Depositor in a form agreed to
between the Depositor and the Trustee, to
reflect such repurchase and shall promptly
notify the Rating Agencies and the
Master Servicer of such amendment. The
obligation of the Seller to repurchase
any Mortgage Loan as to which such a defect
in a constituent document exists
shall be the sole remedy respecting such
defect available to the
Certificateholders or to the Trustee on
their behalf.
Section 2.03 ASSIGNMENT OF INTEREST IN THE ASSIGNMENT, ASSUMPTION
AND
RECOGNITION AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of
the
Certificateholders, all of its right, title
and interest in the Assignment,
Assumption and Recognition Agreement,
including but not limited to Depositor's
rights and obligations pursuant to the
Servicing Agreement. The obligations of
the Seller or the Originator pursuant to
the Assignment, Assumption and
Recognition Agreement or the Servicing
Agreement, as applicable, to substitute
or repurchase a Mortgage Loan shall be the
Trustee's and the Certificateholders'
sole remedy for any breach thereof. At the
request of the Trustee, the Depositor
shall take such actions as may be necessary
to enforce the above right, title
and interest on behalf of the Trustee and
the Certificateholders or shall
execute such further documents as the
Trustee may reasonably require in order to
enable the Trustee to carry out such
enforcement.
(b) If the Depositor, the Master Servicer, Securities Administrator
or
the Trustee discovers a breach of any of
the representations and warranties set
forth in Section 7.03 of the Servicing
Agreement, which breach materially and
adversely affects the value of the
interests of Certificateholders or the
Trustee in the related Mortgage Loan, the
party discovering the breach shall
give prompt written notice of the breach to
the other parties. The Seller or the
Originator pursuant to the Assignment,
Assumption and Recognition Agreement or
the Servicing Agreement, as applicable,
within 90 days of its discovery or
receipt of notice that such breach has
occurred (whichever occurs earlier),
shall cure the breach in all material
respects or, subject to the Assignment,
Assumption and Recognition Agreement,
Servicing Agreement or Section 2.04 of
this Agreement, as applicable, shall
purchase the Mortgage Loan or any property
acquired with respect thereto from the
Trustee. The Depositor shall notify the
Trustee and submit to the Trustee or the
Custodian, as its agent, a Request for
Release, and the Trustee shall release, or
the Trustee shall cause the Custodian
to release, to such Seller or Originator,
as applicable, the related Mortgage
File and the Trustee shall execute and
deliver all instruments of transfer or
assignment furnished to it by such Seller
or Originator, without recourse, as
are necessary to vest in such Seller or
Originator title to and rights under the
Mortgage Loan or any property acquired with
respect thereto. Such purchase shall
be deemed to have occurred on the date on
which the Purchase Price in available
funds is received by the Trustee. The
Trustee or the Master Servicer shall amend
the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify
the Master Servicer and the Rating Agencies
of such amendment. Enforcement of
the obligation of the Seller or Originator
to purchase (or substitute a
Substitute Mortgage Loan
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for) any Mortgage Loan or any property
acquired with respect thereto (or pay the
Purchase Price as set forth in the above
proviso) as to which a breach has
occurred and is continuing shall constitute
the sole remedy respecting such
breach available to the Certificateholders
or the Trustee on their behalf.
Section 2.04 SUBSTITUTION OF MORTGAGE LOANS. Notwithstanding
anything
to the contrary in this Agreement, in lieu
of purchasing a Mortgage Loan
pursuant to Section 7.03 of the Servicing
Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller or Originator
may, no later than the date by which
such purchase by such Seller or Originator
would otherwise be required, tender
to the Trustee a Substitute Mortgage Loan;
provided, however, that substitution
pursuant to Section 7.03 of the Servicing
Agreement or Section 2.04 of this
Agreement, as applicable, in lieu of
purchase shall not be permitted after the
termination of the two-year period
beginning on the Startup Day; provided,
further, that if the breach would cause the
Mortgage Loan to be other than a
"qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure
or substitution must occur within 90 days
from the date the breach was
discovered. The Trustee or the Custodian,
as its agent, shall examine the
Mortgage File for any Substitute Mortgage
Loan in the manner set forth in
Section 2.02(a) and the Trustee or the
Custodian, as its agent, shall notify
such Seller or Originator, in writing,
within five Business Days after receipt,
whether or not the documents relating to
the Substitute mortgage Loan satisfy
the requirements of the fourth sentence of
Subsection 2.02(a). Within one
Business Day of receipt, such Seller or
Originator shall provide to the Trustee
for deposit in the Distribution Account the
amount, if any, by which the
Outstanding Principal Balance as of the
next preceding Due Date of the Mortgage
Loan for which substitution is being made,
after giving effect to Scheduled
Principal due on such date, exceeds the
Outstanding Principal Balance as of such
date of the Substitute Mortgage Loan, after
giving effect to Scheduled Principal
due on such date, which amount shall be
treated for the purposes of this
Agreement as if it were the payment by the
Seller or the Originator of the
Purchase Price for the purchase of a
Mortgage Loan by such Seller or Originator.
After such notification to such Seller or
Originator and, if any such excess
exists, upon receipt of such deposit, the
Trustee shall accept such Substitute
Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder.
In the event of such a substitution,
accrued interest on the Substitute Mortgage
Loan for the month in which the
substitution occurs and any Principal
Prepayments made thereon during such month
shall be the property of the Trust
Fund and accrued interest for such month on
the Mortgage Loan for which the
substitution is made and any Principal
Prepayments made thereon during such
month shall be the property of the
Originator. The Scheduled Principal on a
Substitute Mortgage Loan due on the Due
Date in the month of substitution shall
be the property of such Originator and the
Scheduled Principal on the Mortgage
Loan for which the substitution is made due
on such Due Date shall be the
property of the Trust Fund. Upon acceptance
of the Substitute Mortgage Loan (and
delivery to the Trustee or Custodian of a
Request for Release for such Mortgage
Loan), the Trustee shall release to the
Originator the related Mortgage File
related to any Mortgage Loan released
pursuant to the Assignment, Assumption and
Recognition Agreement or Section 2.04 of
this Agreement, as applicable, and
shall execute and deliver all instruments
of transfer or assignment, without
recourse, in form as provided to it as are
necessary to vest in the Originator
title to and rights under any Mortgage Loan
released pursuant to the Servicing
Agreement or Section 2.04 of this
Agreement, as applicable. The Originator shall
deliver the documents related to the
Substitute Mortgage Loan in accordance with
the provisions of the Servicing Agreement
or Subsections
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2.01(b) and 2.02(b) of this Agreement, as
applicable, with the date of
acceptance of the Substitute Mortgage Loan
deemed to be the Closing Date for
purposes of the time periods set forth in
those Subsections. The representations
and warranties set forth in the Servicing
Agreement shall be deemed to have been
made by the Originator with respect to each
Substitute Mortgage Loan as of the
date of acceptance of such Mortgage Loan by
the Trustee. The Master Servicer
shall amend the Mortgage Loan Schedule to
reflect such substitution and shall
provide a copy of such amended Mortgage
Loan Schedule to the Trustee and the
Rating Agencies.
Section 2.05 ISSUANCE OF CERTIFICATES.
The Trustee acknowledges the assignment to it on behalf of the
Trust Fund of the Mortgage Loans and the
other assets comprising the Trust Fund
and, concurrently therewith, has signed,
and countersigned and delivered to the
Depositor, in exchange therefor,
Certificates in such authorized denominations
representing such Percentage Interests as
the Depositor has requested. The
Trustee agrees that it will hold the
Mortgage Loans and such other assets as may
from time to time be delivered to it
segregated on the books of the Trustee in
trust for the benefit of the
Certificateholders.
Section 2.06 REPRESENTATIONS AND WARRANTIES CONCERNING THE
DEPOSITOR.
The Depositor hereby represents and
warrants to the Trustee, the Master Servicer
and the Securities Administrator as
follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware
and (b) is qualified and in good standing as a foreign corporation
to
do business in each jurisdiction where such qualification is
necessary,
except where the failure so to qualify would not reasonably be
expected
to have a material adverse effect on the Depositor's business
as
presently conducted or on the Depositor's ability to enter into
this
Agreement and to consummate the transactions contemplated
hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to
enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate
action
on the part of the Depositor; and neither the execution and
delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict
with or result in a breach of, or constitute a default under, any
of
the provisions of any law, governmental rule, regulation,
judgment,
decree or order binding on the Depositor or its properties or
the
articles of incorporation or by-laws of the Depositor, except
those
conflicts, breaches or defaults which would not reasonably be
expected
to have a material adverse effect on the Depositor's ability to
enter
into this Agreement and to consummate the transactions
contemplated
hereby;
(iv) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions
contemplated
hereby do not require
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the consent or approval of, the giving of notice to, the
registration
with, or the taking of any other action in respect of, any
state,
federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as
have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery
by
the other parties hereto, constitutes a valid and binding
obligation of
the Depositor enforceable against it in accordance with its
terms
(subject to applicable bankruptcy and insolvency laws and other
similar
laws affecting the enforcement of the rights of creditors
generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the
Depositor,
before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other
matter
which in the judgment of the Depositor will be determined adversely
to
the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter
into
this Agreement or perform its obligations under this Agreement; and
the
Depositor is not in default with respect to any order of any
court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by
this
Agreement; and
(vii) immediately prior to the transfer and assignment to the
Trustee, each Mortgage Note and each Mortgage were not subject to
an
assignment or pledge, and the Depositor had good and marketable
title
to and was the sole owner thereof and had full right to transfer
and
sell such Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest.
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ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 MASTER SERVICER. The Master Servicer shall
supervise,
monitor and oversee the obligation of the
Servicer to service and administer
their respective Mortgage Loans in
accordance with the terms of the Servicing
Agreement and shall have full power and
authority to do any and all things which
it may deem necessary or desirable in
connection with such master servicing and
administration. In performing its
obligations hereunder, the Master Servicer
shall act in a manner consistent with
Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall
oversee and consult with the Servicer as
necessary from time-to-time to carry out
the Master Servicer's obligations
hereunder, shall receive, review and
evaluate all reports, information and other
data provided to the Master Servicer by the
Servicer and shall cause the
Servicer to perform and observe the
covenants, obligations and conditions to be
performed or observed by such Servicer
under the Servicing Agreement. The Master
Servicer shall independently and separately
monitor the Servicer's servicing
activities with respect to each related
Mortgage Loan, reconcile the results of
such monitoring with such information
provided in the previous sentence on a
monthly basis and coordinate corrective
adjustments to the Servicer's and Master
Servicer's records, and based on such
reconciled and corrected information, the
Master Servicer shall provide such
information to the Securities Administrator
as shall be necessary in order for it to
prepare the statements specified in
Section 6.04, and prepare any other
information and statements required to be
forwarded by the Master Servicer hereunder.
Neither of the Master Servicer or
Securities Administrator shall have any
responsibility for reviewing or
reconciling the Protected Account or for
any expenses or other consequences
resulting from any failure of such
Protected Account to be so reconciled.
The Trustee shall furnish the Servicer and the Master Servicer with
any
limited powers of attorney and other
documents in form as provided to it
necessary or appropriate to enable the
Servicer and the Master Servicer to
service and administer the related Mortgage
Loans and REO Property. The Trustee
shall have no liability with respect to the
use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records
and
documentation in possession of the Trustee
or the Custodian regarding the
related Mortgage Loans and REO Property and
the servicing thereof to the
Certificateholders, the FDIC, and the
supervisory agents and examiners of the
FDIC, such access being afforded only upon
reasonable prior written request and
during normal business hours at the office
of the Trustee or the Custodian;
provided, however, that, unless otherwise
required by law, the Trustee or the
Custodian shall not be required to provide
access to such records and
documentation if the provision thereof
would violate the legal right to privacy
of any Mortgagor. The Trustee or the
Custodian shall allow representatives of
the above entities to photocopy any of the
records and documentation and shall
provide equipment for that purpose at a
charge that covers the Trustee's or the
Custodian's actual costs.
The Trustee shall execute and deliver to the Servicer and the
Master
Servicer upon request any court pleadings,
requests for trustee's sale or other
documents necessary or desirable to (i) the
foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any
legal action brought to obtain
judgment against any Mortgagor on the
Mortgage Note or Security Instrument;
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(iii) obtain a deficiency judgment against
the Mortgagor; or (iv) enforce any
other rights or remedies provided by the
Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-RELATED COVENANTS. For as long as the REMIC
Trust
shall exist, the Trustee and the Securities
Administrator shall act in
accordance herewith to assure continuing
treatment of such REMIC Trust as a
REMIC, and the Trustee and the Securities
Administrator shall comply with any
directions of the Depositor, the Servicer
or the Master Servicer to assure such
continuing treatment. In particular, the
Trustee shall not (a) sell or permit
the sale of all or any portion of the
Mortgage Loans or of any investment of
deposits in an Account unless such sale is
as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement
or the Trustee has received a REMIC
Opinion prepared at the expense of the
Trust Fund; and (b) other than with
respect to a substitution pursuant to the
Assignment, Assumption and Recognition
Agreement or Section 2.04 of this
Agreement, as applicable, accept any
contribution to the REMIC Trust after the
Startup Day without receipt of a REMIC
Opinion.
Section 3.03 MONITORING OF SERVICER. (a) The Master Servicer shall
be
responsible for reporting to the Trustee
and the Depositor the compliance by the
Servicer with its duties under the
Servicing Agreement. In the review of the
Servicer's activities, the Master Servicer
may rely upon an officer's
certificate of the Servicer with regard to
such Servicer's compliance with the
terms of its Servicing Agreement. In the
event that the Master Servicer, in its
judgment, determines that a Servicer should
be terminated in accordance with its
Servicing Agreement, or that a notice
should be sent pursuant to such Servicing
Agreement with respect to the occurrence of
an event that, unless cured, would
constitute grounds for such termination,
the Master Servicer shall notify the
Depositor and the Trustee thereof and the
Master Servicer shall issue such
notice or take such other action as it
deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the
obligations of the Servicer under the
Servicing Agreement, and shall, in the
event that a Servicer fails to perform
its obligations in accordance with the
Servicing Agreement, subject to the
preceding paragraph, terminate the rights
and obligations of such Servicer
thereunder and act as servicer of the
related Mortgage Loans or cause the
Trustee to enter into a new Servicing
Agreement with a successor Servicer
selected by the Master Servicer; provided,
however, it is understood and
acknowledged by the parties hereto that
there will be a period of transition
(not to exceed 90 days) before the actual
servicing functions can be fully
transferred to such successor Servicer.
Such enforcement, including, without
limitation, the legal prosecution of
claims, termination of the Servicing
Agreement and the pursuit of other
appropriate remedies, shall be in such form
and carried out to such an extent and at
such time as the Master Servicer, in
its good faith business judgment, would
require were it the owner of the related
Mortgage Loans. The Master Servicer shall
pay the costs of such enforcement at
its own expense subject to Section 3.03(c),
provided that the Master Servicer
shall not be required to prosecute or
defend any legal action except to the
extent that the Master Servicer shall have
received reasonable indemnity for its
costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the Master
Servicer
related to any termination of a Servicer,
appointment of a successor Servicer or
the transfer and assumption of servicing by
the Master Servicer with respect to
the Servicing Agreement (including,
without
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limitation, (i) all legal costs and
expenses and all due diligence costs and
expenses associated with an evaluation of
the potential termination of the
Servicer as a result of an event of default
by such Servicer and (ii) all costs
and expenses associated with the complete
transfer of servicing, including all
servicing files and all servicing data and
the completion, correction or
manipulation of such servicing data as may
be required by the successor servicer
to correct any errors or insufficiencies in
the servicing data or otherwise to
enable the successor service to service the
Mortgage Loans in accordance with
the Servicing Agreement) are not fully and
timely reimbursed by the terminated
Servicer, the Master Servicer shall be
entitled to reimbursement of such costs
and expenses from the Master Servicer
Collection Account pursuant to Section
4.03(b).
(d) The Master Servicer shall require the Servicer to comply with
the
remittance requirements and other
obligations set forth in the Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and
warranties of the Servicer, if any, that
it replaces.
Section 3.04 FIDELITY BOND. The Master Servicer, at its expense,
shall
maintain in effect a blanket fidelity bond
and an errors and omissions insurance
policy, affording coverage with respect to
all directors, officers, employees
and other Persons acting on such Master
Servicer's behalf, and covering errors
and omissions in the performance of the
Master Servicer's obligations hereunder.
The errors and omissions insurance policy
and the fidelity bond shall be in such
form and amount generally acceptable for
entities serving as master servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES. The Master Servicer shall
master
service the Mortgage Loans and shall have
full power and authority, subject to
the REMIC Provisions and the provisions of
Article X hereof, to do any and all
things that it may deem necessary or
desirable in connection with the master
servicing and administration of the
Mortgage Loans, including but not limited to
the power and authority (i) to execute and
deliver, on behalf of the
Certificateholders and the Trustee,
customary consents or waivers and other
instruments and documents, (ii) to consent
to transfers of any Mortgaged
Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the
ownership of the Mortgaged Property
securing any Mortgage Loan, in each case,
in accordance with the provisions of
this Agreement and the Servicing Agreement,
as applicable; provided, however,
that the Master Servicer shall not (and,
consistent with its responsibilities
under Section 3.03, shall not permit the
Servicer to) knowingly or intentionally
take any action, or fail to take (or fail
to cause to be taken) any action
reasonably within its control and the scope
of duties more specifically set
forth herein, that, under the REMIC
Provisions, if taken or not taken, as the
case may be, would cause the REMIC Trust to
fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust
Fund (including but not limited to the
tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code)
unless the Master Servicer has received an
Opinion of Counsel (but not at the
expense of the Master Servicer) to the
effect that the contemplated action will
not would cause the REMIC Trust to fail to
qualify as a REMIC or result in the
imposition of a tax upon the REMIC Trust.
The Trustee shall furnish the Master
Servicer, upon written request from a
Servicing Officer, with any limited powers
of attorney empowering the Master Servicer
or the
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Servicer to execute and deliver instruments
of satisfaction or cancellation, or
of partial or full release or discharge,
and to foreclose upon or otherwise
liquidate Mortgaged Property, and to
appeal, prosecute or defend in any court
action relating to the Mortgage Loans or
the Mortgaged Property, in accordance
with the Servicing Agreement and this
Agreement, and the Trustee shall execute
and deliver such other documents, as the
Master Servicer may request, to enable
the Master Servicer to master service and
administer the Mortgage Loans and
carry out its duties hereunder, in each
case in accordance with Accepted Master
Servicing Practices (and the Trustee shall
have no liability for misuse of any
such powers of attorney by the Master
Servicer or the Servicer). If the Master
Servicer or the Trustee has been advised
that it is likely that the laws of the
state in which action is to be taken
prohibit such action if taken in the name
of the Trustee or that the Trustee would be
adversely affected under the "doing
business" or tax laws of such state if such
action is taken in its name, the
Master Servicer shall join with the Trustee
in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the
performance of its duties hereunder, the
Master Servicer shall be an independent
contractor and shall not, except in
those instances where it is taking action
in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the
extent
provided in the Servicing Agreement, and to
the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to
enforce such clauses in accordance with the
Servicing Agreement. If applicable
law prohibits the enforcement of a
due-on-sale clause or such clause is
otherwise not enforced in accordance with
the Servicing Agreement, and, as a
consequence, a Mortgage Loan is assumed,
the original Mortgagor may be released
from liability in accordance with the
Servicing Agreement.
Section 3.07 RELEASE OF MORTGAGE FILES. (a) Upon becoming aware of
the
payment in full of any Mortgage Loan, or
the receipt by the Servicer of a
notification that payment in full has been
escrowed in a manner customary for
such purposes for payment to
Certificateholders on the next Distribution Date,
the Servicer or the Master Servicer will
furnish to the Custodian, on behalf of
the Trustee, two copies of a certification
substantially in the form of Exhibit
D hereto signed by a Servicing Officer or
in a mutually agreeable electronic
format which will, in lieu of a signature
on its face, originate from a
Servicing Officer (which certification
shall include a statement to the effect
that all amounts received in connection
with such payment that are required to
be deposited in the Protected Account
maintained by the Servicer pursuant to
Section 4.01 or by the Servicer pursuant to
its Servicing Agreement have been or
will be so deposited) and shall request
that the Custodian, on behalf of the
Trustee, deliver to the Servicer the
related Mortgage File. Upon receipt of such
certification and request, the Custodian,
on behalf of the Trustee, shall
promptly and no later than five Business
Days (or, to the extent that the
Servicer notifies the Seller that a
document is not in the Servicer's possession
as part of the Servicing File which is
needed for purposes of the Servicer
complying with any applicable law, within
such shorter period as may be
necessary to enable the Servicer to comply
with such law) release the related
Mortgage File to the Servicer and the
Trustee and Custodian shall have no
further responsibility with regard to such
Mortgage File. Upon any such payment
in full, the Servicer is authorized, to
give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured
the Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage
without recourse) regarding the
Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or
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assignment, as the case may be, shall be
delivered to the Person or Persons
entitled thereto against receipt therefor
of such payment, it being understood
and agreed that no expenses incurred in
connection with such instrument of
satisfaction or assignment, as the case may
be, shall be chargeable to the
Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in
accordance with the Servicing Agreement,
the Trustee shall execute such documents as
requested and as shall be prepared
and furnished to the Trustee by a Servicer
or the Master Servicer (in form
reasonably acceptable to the Trustee) and
as are necessary to the prosecution of
any such proceedings. In connection with
the foregoing, the Custodian, on behalf
of the Trustee, shall, upon the request of
a Servicer or the Master Servicer,
and delivery to the Custodian, on behalf of
the Trustee, of two copies of a
Request for Release signed by a Servicing
Officer substantially in the form of
Exhibit D (or in a mutually agreeable
electronic format which will, in lieu of a
signature on its face, originate from a
Servicing Officer), release the related
Mortgage File held in its possession or
control to the Servicer or the Master
Servicer, as applicable. Such trust receipt
shall obligate the Servicer or the
Master Servicer to return the Mortgage File
to the Custodian on behalf of the
Trustee, when the need therefor by the
Servicer or the Master Servicer no longer
exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt
of a certificate of a Servicing Officer
similar to that hereinabove specified,
the Mortgage File shall be released by the
Custodian, on behalf of the Trustee,
to the Servicer or the Master Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and the Servicer (to the
extent
required by the Servicing Agreement) shall
transmit to the Trustee or Custodian
such documents and instruments coming into
the possession of the Master Servicer
or such Servicer from time to time as are
required by the terms hereof, or in
the case of the Servicer, the Servicing
Agreement, to be delivered to the
Trustee or Custodian. Any funds received by
the Master Servicer or by a Servicer
in respect of any Mortgage Loan or which
otherwise are collected by the Master
Servicer or by a Servicer as Liquidation
Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held
for the benefit of the Trustee and
the Certificateholders subject to the
Master Servicer's right to retain or
withdraw from the Master Servicer
Collection Account the Master Servicing
Compensation and other amounts provided in
this Agreement, and to the right of
the Servicer to retain its Servicing Fee
and other amounts as provided in the
Servicing Agreement. The Master Servicer
shall, and (to the extent provided in
the Servicing Agreement) shall cause the
Servicer to, provide access to
information and documentation regarding the
Mortgage Loans to the Trustee, its
agents and accountants at any time upon
reasonable request and during normal
business hours, and to Certificateholders
that are savings and loan
associations, banks or insurance companies,
the Office of Thrift Supervision,
the FDIC and the supervisory agents and
examiners of such Office and Corporation
or examiners of any other federal or state
banking or insurance regulatory
authority if so required by applicable
regulations of the Office of Thrift
Supervision or other regulatory authority,
such access to be afforded without
charge but only upon reasonable request in
writing and during normal business
hours at
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the offices of the Master Servicer
designated by it. In fulfilling such a
request the Master Servicer shall not be
responsible for determining the
sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under
the
control of, the Master Servicer, in respect
of any Mortgage Loans, whether from
the collection of principal and interest
payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the
Master Servicer for and on behalf of
the Trustee and the Certificateholders and
shall be and remain the sole and
exclusive property of the Trustee;
provided, however, that the Master Servicer
and the Servicer shall be entitled to
setoff against, and deduct from, any such
funds any amounts that are properly due and
payable to the Master Servicer or
such Servicer under this Agreement or the
Servicing Agreement.
Section 3.09 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE
POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce
any
obligation of the Servicer under the
Servicing Agreement to maintain or cause to
be maintained standard fire and casualty
insurance and, where applicable, flood
insurance, all in accordance with the
provisions of the Servicing Agreement. It
is understood and agreed that such
insurance shall be with insurers meeting the
eligibility requirements set forth in the
Servicing Agreement and that no
earthquake or other additional insurance is
to be required of any Mortgagor or
to be maintained on property acquired in
respect of a defaulted loan, other than
pursuant to such applicable laws and
regulations as shall at any time be in
force and as shall require such additional
insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by
the
Servicer or the Master Servicer, or by the
Servicer, under any insurance
policies (other than amounts to be applied
to the restoration or repair of the
property subject to the related Mortgage or
released to the Mortgagor in
accordance with the Servicing Agreement)
shall be deposited into the Master
Servicer Collection Account, subject to
withdrawal pursuant to Section 4.02 and
4.03 in accordance with the terms and
conditions of the Servicing Agreement. Any
cost incurred by the Master Servicer or the
Servicer in maintaining any such
insurance if the Mortgagor defaults in its
obligation to do so shall be added to
the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so
permit; provided, however, that the
addition of any such cost shall not be taken
into account for purposes of calculating
the distributions to be made to
Certificateholders and shall be recoverable
by the Master Servicer or such
Servicer pursuant to Section 4.02 and
4.03.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The
Master Servicer shall (to the extent
provided in the Servicing Agreement) cause
the Servicer to, prepare and present on
behalf of the Trustee and the
Certificateholders all claims under the
Insurance Policies and take such actions
(including the negotiation, settlement,
compromise or enforcement of the
insured's claim) as shall be necessary to
realize recovery under such policies.
Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect
of such policies, bonds or contracts
shall be promptly deposited in the Master
Servicer Collection Account upon
receipt, except that any amounts realized
that are to be applied to the repair
or restoration of the related Mortgaged
Property as a condition precedent to the
presentation of claims on the related
Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so
deposited (or remitted).
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Section 3.11
MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit the Servicer (to
the
extent such action is prohibited under the
Servicing Agreement) to take, any
action that would result in noncoverage
under any applicable Primary Mortgage
Insurance Policy of any loss which, but for
the actions of such Master Servicer
or Servicer, would have been covered
thereunder. The Master Servicer shall use
its best reasonable efforts to cause the
Servicer (to the extent required under
the Servicing Agreement) to keep in force
and effect (to the extent that the
Mortgage Loan requires the Mortgagor to
maintain such insurance), primary
mortgage insurance applicable to each
Mortgage Loan in accordance with the
provisions of this Agreement and the
Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not
permit the Servicer (to the extent
required under the Servicing Agreement) to,
cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is
in effect at the date of the initial
issuance of the Mortgage Note and is
required to be kept in force hereunder
except in accordance with the provisions of
this Agreement and the Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the Servicer
(to
the extent required under the Servicing
Agreement) to present, on behalf of the
Trustee and the Certificateholders, claims
to the insurer under any Primary
Mortgage Insurance Policies and, in this
regard, to take such reasonable action
as shall be necessary to permit recovery
under any Primary Mortgage Insurance
Policies respecting defaulted Mortgage
Loans. Pursuant to Section 4.01 and 4.02,
any amounts collected by the Master
Servicer or the Servicer under any Primary
Mortgage Insurance Policies shall be
deposited in the Master Servicer Collection
Account, subject to withdrawal pursuant to
Section 4.03.
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE
POLICIES
AND DOCUMENTS.
The Trustee or the Custodian shall retain possession and custody of
the
originals (to the extent available) of any
Primary Mortgage Insurance Policies,
or certificate of insurance if applicable,
and any certificates of renewal as to
the foregoing as may be issued from time to
time as contemplated by this
Agreement. Until all amounts distributable
in respect of the Certificates have
been distributed in full and the Master
Servicer otherwise has fulfilled its
obligations under this Agreement, the
Trustee or its Custodian shall also retain
possession and custody of each Mortgage
File in accordance with and subject to
the terms and conditions of this Agreement.
The Master Servicer shall promptly
deliver or cause to be delivered to the
Trustee or the Custodian upon the
execution or receipt thereof the originals
of any Primary Mortgage Insurance
Policies, any certificates of renewal, and
such other documents or instruments
that constitute portions of the Mortgage
File that come into the possession of
the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS. The
Master
Servicer shall cause the Servicer (to the
extent required under the Servicing
Agreement) to foreclose upon, repossess or
otherwise comparably convert the
ownership of Mortgaged Properties securing
such of the Mortgage Loans as come
into and continue in default and as to
which no satisfactory arrangements can be
made for collection of delinquent payments,
all in accordance with the terms and
conditions of the Servicing Agreement.
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Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
The Master Servicer will be entitled to all income and gain
realized
from any investment of funds in the
Distribution Account and the Master Servicer
Collection Account, pursuant to Article IV,
for the performance of its
activities hereunder. Servicing
compensation in the form of assumption fees, if
any, late payment charges, as collected, if
any, or otherwise (but not including
any prepayment premium or penalty) shall be
retained by the Servicer and shall
not be deposited in the Protected Account.
The Master Servicer shall be required
to pay all expenses incurred by it in
connection with its activities hereunder
and shall not be entitled to reimbursement
therefor except as provided in this
Agreement.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO
Property
in respect of any related Mortgage Loan,
the deed or certificate of sale shall
be issued to the Trustee, or to its
nominee, on behalf of the related
Certificateholders. The Master Servicer
shall, to the extent provided in the
Servicing Agreement, cause the Servicer to
sell, any REO Property as
expeditiously as possible and in accordance
with the provisions of this
Agreement and the Servicing Agreement, as
applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer
shall cause the Servicer to protect
and conserve, such REO Property in the
manner and to the extent required by the
Servicing Agreement, in accordance with the
REMIC Provisions and in a manner
that does not result in a tax on "net
income from foreclosure property" or cause
such REO Property to fail to qualify as
"foreclosure property" within the
meaning of Section 860G(a)(8) of the
Code.
(b) The Master Servicer shall, to the extent required by the
Servicing
Agreement, cause the Servicer to deposit
all funds collected and received in
connection with the operation of any REO
Property in the Protected Account.
(c) The Master Servicer and the Servicer, upon the final
disposition of
any REO Property, shall be entitled to
reimbursement for any related
unreimbursed Monthly Advances and other
unreimbursed advances as well as any
unpaid Servicing Fees from Liquidation
Proceeds received in connection with the
final disposition of such REO Property;
provided, that any such unreimbursed
Monthly Advances as well as any unpaid
Servicing Fees may be reimbursed or paid,
as the case may be, prior to final
disposition, out of any net rental income or
other net amounts derived from such REO
Property.
(d) To the extent provided in the Servicing Agreement, the
Liquidation
Proceeds from the final disposition of the
REO Property, net of any payment to
the Master Servicer and the Servicer as
provided above shall be deposited in the
Protected Account on or prior to the
Determination Date in the month following
receipt thereof and be remitted by wire
transfer in immediately available funds
to the Master Servicer for deposit into the
related Master Servicer Collection
Account on the next succeeding Servicer
Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
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(a) The Master Servicer shall deliver to the Trustee and the
Rating
Agencies on or before February 28 of each
year, commencing on February 28, 2006,
an Officer's Certificate, certifying that
with respect to the period ending
December 31 of the prior year: (i) such
Servicing Officer has reviewed the
activities of such Master Servicer during
the preceding calendar year or portion
thereof and its performance under this
Agreement, (ii) to the best of such
Servicing Officer's knowledge, based on
such review, such Master Servicer has
performed and fulfilled its duties,
responsibilities and obligations under this
Agreement in all material respects
throughout such year, or, if there has been a
default in the fulfillment of any such
duties, responsibilities or obligations,
specifying each such default known to such
Servicing Officer and the nature and
status thereof, (iii) nothing has come to
the attention of such Servicing
Officer to lead such Servicing Officer to
believe that the Servicer has failed
to perform any of its duties,
responsibilities and obligations under its
Servicing Agreement in all material
respects throughout such year, or, if there
has been a material default in the
performance or fulfillment of any such
duties, responsibilities or obligations,
specifying each such default known to
such Servicing Officer and the nature and
status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the
Master Servicer or by the Trustee at the
Master Servicer's expense if the Master
Servicer failed to provide such copies
(unless (i) the Master Servicer shall have
failed to provide the Trustee with
such statement or (ii) the Trustee shall be
unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT. If
the
Master Servicer has, during the course of
any fiscal year, directly serviced any
of the Mortgage Loans, then the Master
Servicer at its expense shall cause a
nationally recognized firm of independent
certified public accountants to
furnish a statement to the Trustee, the
Rating Agencies and the Depositor on or
before February 28 of each year, commencing
on February 28, 2006 to the effect
that, with respect to the most recently
ended fiscal year, such firm has
examined certain records and documents
relating to the Master Servicer's
performance of its servicing obligations
under this Agreement and pooling and
servicing and trust agreements in material
respects similar to this Agreement
and to each other and that, on the basis of
such examination conducted
substantially in compliance with the audit
program for mortgages serviced for
Freddie Mac or the Uniform Single
Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master
Servicer's activities have been conducted
in compliance with this Agreement, or that
such examination has disclosed no
material items of noncompliance except for
(i) such exceptions as such firm
believes to be immaterial, (ii) such other
exceptions as are set forth in such
statement and (iii) such exceptions that
the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program
for Mortgages Serviced by Freddie Mac
requires it to report. Copies of such
statements shall be provided to any
Certificateholder upon request by the
Master Servicer, or by the Trustee at the
expense of the Master Servicer if the
Master Servicer shall fail to provide such
copies. If such report discloses exceptions
that are material, the Master
Servicer shall advise the Trustee whether
such exceptions have been or are
susceptible of cure, and will take prompt
action to do so.
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Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE
COMMISSION.
(a) Within 15 days after each Distribution Date, the Master
Servicer
shall, in accordance with industry
standards, file with the Commission via the
Electronic Data Gathering and Retrieval
System ("EDGAR"), a Form 8-K (or other
comparable form containing the same or
comparable information or other
information mutually agreed upon) with a
copy of the statement to the Trustee
who shall make available on its website a
copy of the statement to the
Certificateholders for such Distribution
Date as an exhibit thereto. Prior to
March 30, 2006 (and each year thereafter
unless a Form 15D Suspension
Notification has been filed pursuant to
Section 3.18(d) below), the Master
Servicer shall prepare and file a Form
10-K, in substance conforming to industry
standards, with respect to the Trust Fund.
Each such Form 10-K shall include as
exhibits the Servicer's annual statement of
compliance and annual accountant's
report as described in the Servicing
Agreement, in each case to the extent
timely delivered to the Master Servicer. If
they are not so timely delivered,
the Master Servicer shall file an amended
Form 10-K including such documents as
exhibits reasonably promptly after they are
delivered to the Master Servicer.
The Form 10-K shall also include a
certification in the form attached hereto as
Exhibit K, in compliance with Rules 13a-14
and 15d-14 under the Securities
Exchange Act of 1934, as amended (the
"Exchange Act") and any additional
directives of the Commission, which shall
be signed by a Servicing Officer of
the Master Servicer. The Depositor hereby
grants to the Master Servicer a
limited power of attorney to execute and
file the Form 8-K and Form 10-K on
behalf of the Depositor. Such power of
attorney shall continue until either the
earlier of (i) receipt by the Master
Servicer from the Depositor of written
termination of such power of attorney and
(ii) the termination of the Trust
Fund. The Depositor agrees to promptly
furnish to the Master Servicer, from time
to time upon request, such further
information, reports and financial statements
within its control related to this
Agreement and the Mortgage Loans as the
Master Servicer reasonably deems
appropriate to prepare and file all necessary
reports with the Commission.
Notwithstanding the foregoing sentence, the Master
Servicer shall have no responsibility to
file any items other than those
specified in this Section 3.18; provided,
however, the Master Servicer will
cooperate with the Depositor in connection
with any additional filings with
respect to the Trust Fund as the Depositor
deems necessary under the Exchange
Act. Copies of all reports filed by the
Master Servicer under the Exchange Act
shall be sent to: the Depositor c/o Merrill
Lynch & Co. Inc. Attn: Managing
Director-Analysis and Control. Fees and
expenses incurred by the Master Servicer
in connection with this Section 3.18 shall
not be reimbursable from the Trust
Fund except as pursuant to Sections 7.04(c)
hereof.
(b) The Master Servicer shall indemnify and hold harmless the
Trustee,
the Depositor and their respective
officers, directors and Affiliates from and
against any losses, damages, penalties,
fines, forfeitures, reasonable and
necessary legal fees and related costs,
judgments and other costs and expenses
arising out of or based upon a breach of
the Master Servicer's obligations under
this Section 3.18 or the Master Servicer's
negligence, bad faith or willful
misconduct in connection therewith.
(c) If, after the Closing Date (a) the Sarbanes-Oxley Act of 2002
is
amended, (b) Rules 13a-14 and 15d-14 under
the Exchange Act and any related
directives of the Commission are modified
or superseded by any subsequent
statement, rule, directive or regulation of
the Commission or any division
thereof, or (c) any future releases, rules
and regulations are
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published by the Commission from time to
time pursuant to the Sarbanes-Oxley Act
of 2002, which in any such case affect the
form or substance of the required
certification under Rule 13a-14 and 15d-14
of the Exchange Act such that, in the
reasonable judgment of the Master Servicer,
the required certification is
materially more onerous than the form of
the requirement attached hereto as
Exhibit K as of the Closing Date, the
Master Servicer, the Depositor and the
Mortgage Loan Seller shall negotiate in
good faith to determine how to amend the
certification attached hereto as Exhibit K
or any of the provisions in this
Section 3.18 to comply with any such new
requirements. Notwithstanding any other
provision of this Agreement, the provisions
of this Section 3.18 may be amended
by the Depositor, the Master Servicer and
the Trustee without the consent of the
Certificateholders.
(d) Prior to January 30th of the first year in which the Master
Servicer is able to do so under applicable
law, the Master Servicer shall file
with the Commission a Form 15D Suspension
Notification with respect to the Trust
Fund.
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ARTICLE IV
ACCOUNTS
Section 4.01 PROTECTED ACCOUNTS. (a) The Master Servicer shall
enforce
the obligation of the Servicer to establish
and maintain a Protected Account in
accordance with the Servicing Agreement,
with records to be kept with respect
thereto on a Mortgage Loan by Mortgage Loan
basis, into which accounts shall be
deposited within 48 hours (or as of such
other time specified in the Servicing
Agreement) of receipt all collections of
principal and interest on any Mortgage
Loan and with respect to any REO Property
received by a Servicer, including
Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, Subsequent
Recoveries and advances made from the
Servicer's own funds (less servicing
compensation as permitted by the Servicing
Agreement in the case of the
Servicer) and all other amounts to be
deposited in the Protected Account. The
Servicer is hereby authorized to make
withdrawals from and deposits to the
related Protected Account for purposes
required or permitted by this Agreement.
To the extent provided in the Servicing
Agreement, the Protected Account shall
be held in a Designated Depository
Institution and segregated on the books of
such institution in the name of the Trustee
for the benefit of
Certificateholders.
(b) To the extent provided in the Servicing Agreement, amounts
on
deposit in a Protected Account may be
invested in Permitted Investments in the
name of the Trustee for the benefit of
Certificateholders and, except as
provided in the preceding paragraph, not
commingled with any other funds, such
Permitted Investments to mature, or to be
subject to redemption or withdrawal,
no later than the date on which such funds
are required to be withdrawn for
deposit in the Master Servicer Collection
Account, and shall be held until
required for such deposit. The income
earned from Permitted Investments made
pursuant to this Section 4.01 shall be paid
to the Servicer under the Servicing
Agreement, and the risk of loss of moneys
required to be distributed to the
Certificateholders resulting from such
investments shall be borne by and be the
risk of the Servicer, as set forth in the
Servicing Agreement. The Servicer (to
the extent provided in the Servicing
Agreement) shall deposit the amount of any
such loss in the Protected Account within
two Business Days of receipt of
notification of such loss but not later
than the second Business Day prior to
the Distribution Date on which the moneys
so invested are required to be
distributed to the Certificateholders.
(c) To the extent provided in the Servicing Agreement and subject
to
this Article IV, on or before each Servicer
Remittance Date, the Servicer shall
withdraw or shall cause to be withdrawn
from the Protected Accounts and shall
immediately deposit or cause to be
deposited in the Master Servicer Collection
Account amounts representing the following
collections and payments (other than
with respect to principal of or interest on
the Mortgage Loans due on or before
the Cut-off Date):
(i) Monthly Payments on the Mortgage Loans received or any
related portion thereof advanced by the Servicer pursuant to
the
Servicing Agreement which were due on or before the related Due
Date,
net of the amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments in Full and any Liquidation
Proceeds received by the Servicer with respect to such Mortgage
Loans
in the related Prepayment Period, with
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interest to the date of prepayment or liquidation, net of the
amount
thereof comprising the Servicing Fees;
(iii) Curtailments received by the Servicer for such Mortgage
Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account
only
to make remittances as provided in Section
4.01(c), 4.02 and 4.03; to reimburse
the Master Servicer or a Servicer for
Monthly Advances which have been recovered
by subsequent collection from the related
Mortgagor; to remove amounts deposited
in error; to remove fees, charges or other
such amounts deposited on a temporary
basis; or to clear and terminate the
account at the termination of this
Agreement in accordance with Section 10.01.
As provided in Sections 4.01(c) and
4.02(b) certain amounts otherwise due to
the Servicer may be retained by them as
set forth in the Servicing Agreement and
need not be deposited in the Master
Servicer Collection Account.
Section 4.02 MASTER SERVICER COLLECTION ACCOUNT. (a) The Master
Servicer shall establish and maintain in
the name of the Trustee, for the
benefit of the Certificateholders, the
Master Servicer Collection Account as a
segregated trust account or accounts. The
Master Servicer will deposit in the
Master Servicer Collection Account as
identified by the Master Servicer and as
received by the Master Servicer, the
following amounts:
(i) Any amounts withdrawn from a Protected Account or other
permitted account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Master
Servicer
or which were not deposited in a Protected Account or other
permitted
account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property
acquired
in connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer
Collection
Account pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection
Account
shall be held by the Master Servicer in the
name of the Trustee in trust for the
benefit of the Certificateholders in
accordance with the terms and provisions of
this Agreement. The requirements for
crediting the Master Servicer Collection
Account or the Distribution Account shall
be exclusive, it being understood and
agreed that, without limiting the
generality of the foregoing, payments in the
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nature of (i) prepayment or late payment
charges or assumption, tax service,
statement account or payoff, substitution,
satisfaction, release and other like
fees and charges and (ii) the items
enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix),
(xi) and (xii) with respect to the
Securities Administrator, need not be
credited by the Master Servicer or the
Servicer to the Distribution Account or the
Master Servicer Collection Account,
as applicable. In the event that the Master
Servicer shall deposit or cause to
be deposited to the Distribution Account
any amount not required to be credited
thereto, the Trustee, upon receipt of a
written request therefor signed by a
Servicing Officer of the Master Servicer,
shall promptly transfer such amount to
the Master Servicer from the Distribution
Account, any provision herein to the
contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer
Collection
Account shall be invested, in the name of
the Trustee, or its nominee, for the
benefit of the Certificateholders, in
Permitted Investments as directed by
Master Servicer. All Permitted Investments
shall mature or be subject to
redemption or withdrawal on or before, and
shall be held until, the next
succeeding Distribution Account Deposit
Date. Any and all investment earnings on
amounts on deposit in the Master Servicer
Collection Account from time to time
shall be for the account of the Master
Servicer. The Master Servicer from time
to time shall be permitted to withdraw or
receive distribution of any and all
investment earnings from the Master
Servicer Account. The risk of loss of moneys
required to be distributed to the
Certificateholders resulting from such
investments shall be borne by and be the
risk of the Master Servicer. The Master
Servicer shall deposit the amount of any
such loss in the Master Servicer
Collection Account within two Business Days
of receipt of notification of such
loss but not later than the second Business
Day prior to the Distribution Date
on which the moneys so invested are
required to be distributed to the
Certificateholders.
Section 4.03 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
MASTER
SERVICER COLLECTION ACCOUNT. (a) The Master
Servicer will, from time to time on
demand of the Master Servicer, the Trustee
or the Securities Administrator, make
or cause to be made such withdrawals or
transfers from the Master Servicer
Collection Account as the Master Servicer
has designated for such transfer or
withdrawal pursuant to the Servicing
Agreement. The Master Servicer may clear
and terminate the Master Servicer
Collection Account pursuant to Section 10.01
and remove amounts from time to time
deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from
the
Master Servicer Collection Account (i) any
expenses recoverable by the Trustee,
the Master Servicer or the Securities
Administrator pursuant to this Agreement,
including but not limited to Sections
2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as
set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit
Date,
the Master Servicer shall deposit in the
Distribution Account (or remit to the
Trustee for deposit therein) any Monthly
Advances required to be made by the
Master Servicer with respect to the
Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution
Account
Deposit Date, the Master Servicer will
transfer all Available Funds on deposit
in the Master Servicer
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Collection Account with respect to the
related Distribution Date to the Trustee
for deposit in the Distribution
Account.
Section 4.04 DISTRIBUTION ACCOUNT. (a) The Trustee shall establish
and
maintain in the name of the Trustee, for
the benefit of the Certificateholders,
the Distribution Account as a segregated
trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held
by
the Trustee in the name of the Trustee in
trust for the benefit of the
Certificateholders in accordance with the
terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of
the
Trust Fund segregated on the books of the
Trustee and held by the Trustee in
trust in its Corporate Trust Office, and
the Distribution Account and the funds
deposited therein shall not be subject to,
and shall be protected to the maximum
extent permitted by applicable law from,
all claims, liens, and encumbrances of
any creditors or depositors of the Trustee
or the Master Servicer (whether made
directly, or indirectly through a
liquidator or receiver of the Trustee or the
Master Servicer). The Distribution Account
shall be an Eligible Account. The
amount at any time credited to the
Distribution Account shall be (i) fully
insured by the FDIC to the maximum coverage
provided thereby or (ii) invested in
the name of the Trustee, in such Permitted
Investments selected by the Master
Servicer or deposited in demand deposits
with such depository institutions as
selected by the Master Servicer, provided
that time deposits of such depository
institutions would be a Permitted
Investment. All Permitted Investments shall
mature or be subject to redemption or
withdrawal on or before, and shall be held
until, the next succeeding Distribution
Date if the obligor for such Permitted
Investment is the Trustee or, if such
obligor is any other Person, the Business
Day preceding such Distribution Date. All
investment earnings on amounts on
deposit in the Distribution Account or
benefit from funds uninvested therein
from time to time shall be for the account
of the Master Servicer. The Master
Servicer shall be permitted to withdraw or
receive distribution of any and all
investment earnings from the Distribution
Account on each Distribution Date. If
there is any loss on a Permitted Investment
or demand deposit, the Master
Servicer shall remit the amount of the loss
to the Trustee who shall deposit
such amount in the Distribution Account.
With respect to the Distribution
Account and the funds deposited therein,
the Master Servicer shall take such
action as may be necessary to ensure that
the Certificateholders shall be
entitled to the priorities afforded to such
a trust account (in addition to a
claim against the estate of the Trustee) as
provided by 12 U.S.C. ss. 92a(e),
and applicable regulations pursuant
thereto, if applicable, or any applicable
comparable state statute applicable to
state chartered banking corporations.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
DISTRIBUTION
ACCOUNT. (a) The Trustee will, from time to
time on demand of the Master
Servicer or the Securities Administrator,
make or cause to be made such
withdrawals or transfers from the
Distribution Account as the Master Servicer or
the Securities Administrator has designated
for such transfer or withdrawal
pursuant to the Servicing Agreement or as
the Securities Administrator has
instructed hereunder for the following
purposes (limited in the case of amounts
due the Master Servicer to those not
withdrawn from the Master Servicer
Collection Account in accordance with the
terms of this Agreement):
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(i) to reimburse the Master Servicer or the Servicer for any
Monthly Advance of its own funds or any advance of such Servicer's
own
funds, the right of the Master Servicer or a Servicer to
reimbursement
pursuant to this subclause (i) being limited to amounts received on
a
particular Mortgage Loan (including, for this purpose, the
Purchase
Price therefor, Insurance Proceeds and Liquidation Proceeds)
which
represent late payments or recoveries of the principal of or
interest
on such Mortgage Loan respecting which such Monthly Advance or
advance
was made;
(ii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a
particular
Mortgage Loan for amounts expended by the Master Servicer or
such
Servicer in good faith in connection with the restoration of
the
related Mortgaged Property which was damaged by an Uninsured Cause
or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for
insured
expenses incurred with respect to such Mortgage Loan and to
reimburse
the Master Servicer or such Servicer from Liquidation Proceeds from
a
particular Mortgage Loan for Liquidation Expenses incurred with
respect
to such Mortgage Loan; provided that the Master Servicer shall not
be
entitled to reimbursement for Liquidation Expenses with respect to
a
Mortgage Loan to the extent that (i) any amounts with respect to
such
Mortgage
Loan were paid as Excess Liquidation Proceeds pursuant to
clause (xi) of this Subsection 4.03 (a) to the Master Servicer;
and
(ii) such Liquidation Expenses were not included in the computation
of
such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or the Servicer, as
appropriate, from Liquidation Proceeds or Insurance Proceeds
received
in connection with the liquidation of any Mortgage Loan, the
amount
which it or such Servicer would have been entitled to receive
under
subclause (ix) of this Subsection 4.03(a) as servicing compensation
on
account of each defaulted scheduled payment on such Mortgage Loan
if
paid in a timely manner by the related Mortgagor;
(v) to pay the Master Servicer or the Servicer from the
Purchase Price for any Mortgage Loan, the amount which it or
such
Servicer would have been entitled to receive under subclause (ix)
of
this
Subsection 4.03 (a) as servicing compensation;
(vi) to reimburse the Master Servicer or the Servicer for
advances of funds pursuant to Sections, and the right to
reimbursement
pursuant to this subclause being limited to amounts received on
the
related Mortgage Loan (including, for this purpose, the Purchase
Price
therefor, Insurance Proceeds and Liquidation Proceeds) which
represent
late recoveries of the payments for which such advances were
made;
(vii) to reimburse the Master Servicer or the Servicer for any
Monthly Advance or advance, after a Realized Loss has been
allocated
with respect to the related Mortgage Loan if the Monthly Advance
or
advance has not been reimbursed pursuant to clauses (i) and
(vi);
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(viii) to pay the Master Servicer as set forth in Section
3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this
Agreement, including but not limited to Sections 3.03, 7.04(c) and
(d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not
retained by the Servicer;
(xi) to reimburse or pay the Servicer any such amounts as are
due thereto under the Servicing Agreement and have not been
retained by
or paid to the Servicer, to the extent provided in the
Servicing
Agreement;
(xii) to reimburse the Trustee or the Securities Administrator
for expenses, costs and liabilities incurred by or reimbursable to
it
pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant
to Section 10.01.
(b) The Master Servicer shall keep and maintain separate
accounting, on
a Mortgage Loan by Mortgage Loan basis, for
the purpose of accounting for any
reimbursement from the Distribution Account
pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect
to any such amounts which would have
been covered by such subclauses had the
amounts not been retained by the Master
Servicer without being deposited in the
Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Trustee shall distribute the
Available Funds to the Holders of the
Certificates as instructed by the Master
Servicer or the Securities Administrator in
accordance with Section 6.01.
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ARTICLE V
CERTIFICATES
Section 5.01 THE CERTIFICATES.
Each of the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5,
Class A-6, Class A-7, Class A-8, Class M-1,
Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class R
Certificates shall be substantially in the
forms annexed hereto as exhibits, and
shall, on original issue, be executed,
authenticated and delivered by the Trustee
to or upon the receipt of a written
order to Authenticate from the Depositor
concurrently with the sale and
assignment to the Trustee of the Trust
Fund. Each Class of the Certificates
(other than the Residual Certificates)
shall be initially evidenced by one or
more Certificates representing a Percentage
Interest with a minimum dollar
denomination of $50,000 and integral dollar
multiples of $1 in excess thereof.
The Residual Certificates will be issued in
registered, certificated form in
minimum denominations of a 25% Percentage
Interest. Provided however, that one
Certificate of each such Class of
Certificates may be in a different
denomination so that the sum of the
denominations of all outstanding
Certificates of such Class shall equal the
Class Certificate Balance of such
Class on the Closing Date.
The Certificates shall be executed on behalf of the Trust Fund
by
manual or facsimile signature on behalf of
the Trustee by a Responsible Officer.
Certificates bearing the manual or
facsimile signatures of individuals who were,
at the time when such signatures were
affixed, authorized to sign on behalf of
the Trustee shall bind the Trust Fund,
notwithstanding that such individuals or
any of them have ceased to be so authorized
prior to the authentication and
delivery of such Certificates or did not
hold such offices at the date of such
Certificate. No Certificate shall be
entitled to any benefit under this
Agreement or be valid for any purpose,
unless such Certificate shall have been
manually authenticated by the Trustee
substantially in the form provided for
herein, and such authentication upon any
Certificate shall be conclusive
evidence, and the only evidence, that such
Certificate has been duly
authenticated and delivered hereunder. All
Certificates shall be dated the date
of their authentication. Subject to Section
5.02(c), the Certificates, other
than the Class B-1, Class B-2, Class B-3
and Residual Certificates
(collectively, the "Private Certificates"),
shall be Book-Entry Certificates.
Section 5.02 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Certificate Registrar shall cause to be kept at the
Corporate
Trust Office a Certificate Register in
which, subject to such reasonable
regulations as it may prescribe, the
Certificate Registrar shall provide for the
registration of Certificates and of
transfers and exchanges of Certificates as
herein provided. The Trustee shall
initially serve as Certificate Registrar for
the purpose of registering Certificates and
transfers and exchanges of
Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at
any
office or agency of the Certificate
Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in
the case of a Class R Certificate,
upon satisfaction of the conditions set
forth below, the Trustee on behalf of
the Trust shall execute, authenticate and
deliver, in the name of the designated
transferee or transferees, one or more new
Certificates of the same aggregate
Percentage Interest.
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At the option of the Certificateholders, Certificates may be
exchanged
for other Certificates in authorized
denominations and the same aggregate
Percentage Interests, upon surrender of the
Certificates to be exchanged at any
such office or agency. Whenever any
Certificates are so surrendered for
exchange, the Trustee shall execute on
behalf of the Trust and authenticate and
deliver the Certificates which the
Certificateholder making the exchange is
entitled to receive. Every Certificate
presented or surrendered for registration
of transfer or exchange shall (if so
required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be
accompanied by a written instrument of
transfer satisfactory to the Trustee and
the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly
authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain
registered in the name of the Depository
or its nominee and at all times: (i)
registration of such Certificates may not
be transferred by the Trustee except to
another Depository; (ii) the Depository
shall maintain book-entry records with
respect to the Certificate Owners and
with respect to ownership and transfers of
such Certificates; (iii) ownership
and transfers of registration of such
Certificates on the books of the
Depository shall be governed by applicable
rules established by the Depository;
(iv) the Depository may collect its
