MERRILL LYNCH MORTGAGE INVESTORS,
INC.
Depositor
WACHOVIA BANK, NATIONAL
ASSOCIATION
Trustee
and
WELLS FARGO BANK, N.A.
Master Servicer and Securities
Administrator
______________________________________
POOLING AND SERVICING
AGREEMENT
DATED AS OF MAY 1, 2005
______________________________________
MERRILL LYNCH MORTGAGE INVESTORS
TRUST,
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005-A3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
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SECTION 2.01
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Conveyance of Mortgage
Loans.
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SECTION 2.02
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Acceptance of Mortgage Loans by
Trustee.
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SECTION 2.03
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Assignment of Interest in the
Assignment, Assumption and Recognition Agreement
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SECTION 2.04
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Substitution of Mortgage
Loans
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SECTION 2.05
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Issuance of Certificates.
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SECTION 2.06
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Representations and Warranties
Concerning the Depositor
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SECTION 2.07
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Representations and Warranties
Concerning the Master Servicer
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SECTION 2.08
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REMIC Elections.
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ARTICLE III
ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
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SECTION 3.01
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Master Servicer
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SECTION 3.02
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REMIC-Related Covenants
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SECTION 3.03
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Monitoring of Servicer
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SECTION 3.04
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Fidelity Bond
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SECTION 3.05
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Power to Act; Procedures
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SECTION 3.06
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Due-on-Sale Clauses; Assumption
Agreements
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SECTION 3.07
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Release of Mortgage Files
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SECTION 3.08
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Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee.
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SECTION 3.09
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Standard Hazard Insurance and Flood
Insurance Policies.
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SECTION 3.10
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Presentment of Claims and Collection
of Proceeds
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SECTION 3.11
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Maintenance of the Primary Mortgage
Insurance Policies.
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SECTION 3.12
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Trustee to Retain Possession of
Certain Insurance Policies and Documents.
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SECTION 3.13
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Realization Upon Defaulted Mortgage
Loans
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SECTION 3.14
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Compensation for the Master
Servicer.
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SECTION 3.15
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REO Property.
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SECTION 3.16
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Annual Officer’s Certificate
as to Compliance.
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SECTION 3.17
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Annual Independent
Accountant’s Servicing Report
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SECTION 3.18
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Reports Filed with Securities and
Exchange Commission.
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SECTION 3.19
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Rights of the NIMs
Insurer.
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ARTICLE IV
DISTRIBUTIONS
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SECTION 4.01
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Protected Accounts
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SECTION 4.02
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Master Servicer Collection
Account.
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SECTION 4.03
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Permitted Withdrawals and Transfers
from the Master Servicer Collection Account.
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SECTION 4.04
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Distribution Account
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SECTION 4.05
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Permitted Withdrawals and Transfers
from the Distribution Account
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SECTION 4.06
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Distributions on the REMIC
Interests.
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SECTION 4.07
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Distributions.
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SECTION 4.08
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Payments
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SECTION 4.09
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Statements to
Certificateholders
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SECTION 4.10
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Monthly Advances
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SECTION 4.11
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Compensating Interest
Payments
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ARTICLE V
THE CERTIFICATES
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SECTION 5.01
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The Certificates.
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SECTION 5.02
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Certificate Register; Registration
of Transfer and Exchange of Certificates.
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SECTION 5.03
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Mutilated, Destroyed, Lost or Stolen
Certificates.
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SECTION 5.04
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Persons Deemed Owners.
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SECTION 5.05
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Access to List of
Certificateholders’ Names and Addresses.
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SECTION 5.06
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Book-Entry Certificates.
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SECTION 5.07
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Notices to Depository.
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SECTION 5.08
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Definitive Certificates.
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SECTION 5.09
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Maintenance of Office or
Agency.
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ARTICLE VI
THE MASTER SERVICER AND THE
DEPOSITOR
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SECTION 6.01
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Liabilities of the Master
Servicer
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SECTION 6.02
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Merger or Consolidation of the
Master Servicer.
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SECTION 6.03
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Indemnification from the Master
Servicer and the Depositor
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SECTION 6.04
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Limitations on Liability of the
Master Servicer and Others
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SECTION 6.05
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Master Servicer Not to
Resign
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SECTION 6.06
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Successor Master Servicer
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SECTION 6.07
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Sale and Assignment of Master
Servicing
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ARTICLE VII
DEFAULT
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SECTION 7.01
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Events of Default
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SECTION 7.02
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Trustee to Act; Appointment of
Successor
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SECTION 7.03
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Notification to
Certificateholders
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SECTION 7.04
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Waiver of Defaults
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SECTION 7.05
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List of
Certificateholders
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE
SECURITIES ADMINISTRATOR
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SECTION 8.01
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Duties of Trustee
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SECTION 8.02
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Certain Matters Affecting the
Trustee and the Securities Administrator
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SECTION 8.03
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Trustee and Securities Administrator
Not Liable for Certificates or Mortgage Loans
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SECTION 8.04
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Trustee and Securities Administrator
May Own Certificates
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SECTION 8.05
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Trustee’s and Securities
Administrator’s Fees and Expenses
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SECTION 8.06
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Eligibility Requirements for Trustee
and Securities Administrator
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SECTION 8.07
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Insurance
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SECTION 8.08
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Resignation and Removal of the
Trustee and Securities Administrator
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SECTION 8.09
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Successor Trustee and Successor
Securities Administrator
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SECTION 8.10
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Merger or Consolidation of Trustee
or Securities Administrator
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SECTION 8.11
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Appointment of Co-Trustee or
Separate Trustee
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SECTION 8.12
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Federal Information Returns and
Reports to Certificateholders; REMIC Administration
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ARTICLE IX
TERMINATION
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SECTION 9.01
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Termination upon Liquidation or
Repurchase of all Mortgage Loans.
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SECTION 9.02
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Final Distribution on the
Certificates.
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SECTION 9.03
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Additional Termination
Requirements.
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ARTICLE X
MISCELLANEOUS PROVISIONS
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SECTION 10.01
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Intent of Parties
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SECTION 10.02
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Amendment
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SECTION 10.03
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Recordation of Agreement
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SECTION 10.04
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Limitation on Rights of
Certificateholders
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SECTION 10.05
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Acts of
Certificateholders
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SECTION 10.06
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Governing Law
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SECTION 10.07
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Notices
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SECTION 10.08
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Severability of
Provisions
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SECTION 10.09
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Successors and Assigns
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SECTION 10.10
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Article and Section
Headings
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SECTION 10.11
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Counterparts
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SECTION 10.12
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Notice to Rating Agencies
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SECTION 10.13
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Third Party Beneficiary
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SECTION 10.14
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Additional Rights of the NIMs
Insurer.
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Exhibit A-1
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-
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Form of Class A
Certificates
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Exhibit A-2
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-
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Form of Class M and Class B
Certificates
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Exhibit A-3
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-
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Form of Class R
Certificates
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Exhibit A-4
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-
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Form of Class C and Class P
Certificates
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Exhibit B
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-
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Mortgage Loan Schedule
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Exhibit C
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-
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[Reserved]
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Exhibit D
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-
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Request for Release of
Documents
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Exhibit E-1
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-
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Form of Transfer Affidavit pursuant
to Section 860E(e)(4)
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Exhibit E-2
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-
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Form of Transferor
Certificate
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Exhibit F-1
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-
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Form of Transferor Representation
Letter
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Exhibit F-2
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-
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Form of Investor Representation
Letter
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Exhibit F-3
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-
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Form of Rule 144A Letter
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Exhibit G
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-
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Form of Custodial
Agreement
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Exhibit H
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-
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Servicing Agreement
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Exhibit I
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-
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Assignment Agreement
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Exhibit J
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-
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[Reserved]
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Exhibit K
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-
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Form Certification to be Provided by
the Master Servicer with Form 10-K
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Exhibit L
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-
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Form of Cap Contract
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This POOLING AND SERVICING AGREEMENT
(the “Agreement”), dated as of May 1, 2005, among
MERRILL LYNCH MORTGAGE INVESTORS, INC., a Delaware corporation, as
depositor (the “Depositor”), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee (the
“Trustee”) and WELLS FARGO BANK, N.A., a national
banking association, as master servicer (in such capacity, the
“Master Servicer”) and as securities administrator (in
such capacity, the “Securities
Administrator”).
PRELIMINARY STATEMENT
The Depositor intends to sell
mortgage pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined herein). As
provided herein, the Trustee will make, in accordance with Section
8.12, an election to treat the entire segregated pool of assets
described in the definition of REMIC 1 (as defined herein)
(excluding the Cap Contract and the Cap Contract Account), and
subject to this Agreement, as a real estate mortgage investment
conduit (a “REMIC”) for federal income tax purposes and
such segregated pool of assets will be designated as “REMIC
1.” The REMIC 1 Regular Interests will be the “regular
interests” in REMIC 1 and the Class R-1 Interest will be the
sole class of “residual interests” in REMIC 1 for
purposes of the REMIC Provisions (as defined herein) under the
federal income tax law. A segregated pool of assets consisting of
the REMIC 1 Regular Interests will be designated as “REMIC
2” and the REMIC Administrator will make a separate REMIC
election with respect thereto. The Class A-1, Class A-2, Class M-1,
Class M-2, Class B-1, Class B-2 and Class B-3 Certificates will be
“regular interests” in REMIC 2, and the Class R-2
Interest will be the sole class of “residual interests”
therein for purposes of the REMIC Provisions (as defined herein)
under federal income tax law.
The following table irrevocably sets
forth the designation, the REMIC 1 Pass-Through Rate, the initial
Uncertificated Principal Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for the REMIC 1 Regular Interest. The
REMIC 1 Regular Interests will not be certificated.
REMIC I
|
Designation
|
|
REMIC 1 Pass-Through
Rate
|
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Uncertificated
Principal Balance
|
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Latest Possible
Maturity Date
(1)
|
|
|
AA
|
|
Variable (2)
|
|
$
|
311,034,796.49
|
|
May 25, 2035
|
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A-I-1
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Variable (2)
|
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$
|
2,595,080.00
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May 25, 2035
|
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A-I-2
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Variable (2)
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$
|
288,340.00
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May 25, 2035
|
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M-1
|
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Variable (2)
|
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$
|
101,560.00
|
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May 25, 2035
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M-2
|
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Variable (2)
|
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$
|
74,580.00
|
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May 25, 2035
|
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B-1
|
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Variable (2)
|
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$
|
52,370.00
|
|
May 25, 2035
|
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B-2
|
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Variable (2)
|
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$
|
15,870.00
|
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May 25, 2035
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B-3
|
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Variable (2)
|
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$
|
33,330.00
|
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May 25, 2035
|
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R-2
|
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Variable (2)
|
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$
|
1.00
|
|
May 25, 2035
|
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ZZ
|
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Variable (2)
|
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$
|
3,186,517.91
|
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May 25, 2035
|
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_______________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date immediately
following the latest possible maturity date for the Mortgage Loans
has been designated as the “latest possible maturity
date” for each REMIC 1 Regular Interest.
|
|
(2)
|
Calculated in accordance with the
definition of “REMIC 1 Pass-Through Rate”
herein.
|
REMIC 2
The Certificates shall be
substantially in the forms attached hereto as exhibits. For
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates is May 25, 2035. The
Certificates shall be issuable in registered form, in the minimum
dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate of each Class may be issued in a
different amount which must be in excess of the applicable minimum
dollar denomination) and aggregate dollar denominations as set
forth in the following table:
|
Class
|
|
REMIC 2 Pass-Through
Rate
|
|
Minimum
Denomination
|
|
Integral Multiples
in
Excess of Minimum
|
|
Initial
Certificate
Principal Balance
|
|
|
A-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
$
|
259,508,000.00
|
|
|
A-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
28,834,000.00
|
|
|
M-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
10,156,000.00
|
|
|
M-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
7,458,000.00
|
|
|
B-1
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
5,237,000.00
|
|
|
B-2
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
1,587,000.00
|
|
|
B-3
|
|
Adjustable Rate(1)
|
|
$
|
50,000.00
|
|
$
|
1.00
|
|
|
3,333,000.00
|
|
|
C
|
|
Variable(2)
|
|
(3)
|
|
(3)
|
|
|
100
|
%
|
|
R
|
|
Adjustable Rate(1)
|
|
$
|
100.00
|
|
N/A
|
|
$
|
100.00
|
|
___________________
|
(1)
|
The Pass-Through Rate for each of the Class A
Certificates, Class B Certificates and Class M Certificates shall
equal the corresponding Pass-Through Rate for such Class of
Certificates as provided herein.
|
|
(2)
|
The Class C Certificates will accrue interest at
its variable Pass-Through Rate on the Uncertificated Notional
Amount of the Class C Certificates outstanding from time to time
which shall equal the aggregate Uncertificated Principal Balance of
the REMIC 1 Regular Interests. The Class C Certificates will not
accrue interest on its Uncertificated Principal Balance.
|
|
(3)
|
The Class C Certificates shall not have minimum
dollar denominations or certificate notional amounts and shall be
issued in a minimum percentage interest of 10%. The initial
Overcollateralization Amount is $1,269,245.
|
|
|
|
|
GRANTOR TRUST
As provided herein, the Trustee will
elect to treat the segregated pool of assets consisting of all
Prepayment Charges as a Grantor Trust for federal income tax
purposes under subpart E, part I of subchapter J of the Code and
not as an association taxable as a corporation or as a partnership,
and such segregated pool of assets will be designated as the
Grantor Trust. The following table irrevocably sets forth the
designation and aggregate Initial Certificate Principal Balance for
each Class P Certificates comprising the interests in the Grantor
Trust.
|
Designation
|
Pass-Through Rate
|
Initial Principal
Balance
|
|
|
Class P
|
0.00%(1)
|
N/A
|
|
|
|
(1)
|
The Class P Certificates are
entitled to all Prepayment Charges and are not entitled to any
interest.
|
|
|
|
|
|
|
|
In consideration of the mutual
agreements herein contained, the Depositor, the Master Servicer and
the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Accepted Master Servicing
Practices : With respect
to any Mortgage Loan, as applicable, either (x) those customary
mortgage master servicing practices of prudent mortgage servicing
institutions that master service mortgage loans of the same type
and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to
the Trustee or the Master Servicer (except in its capacity as
successor to a Servicer), or (y) as provided in the 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.
Accrual Period
: With respect to each Class of
Certificates (other than the Class C Certificates and Class P
Certificates) and REMIC 1 Regular Interests and any Distribution
Date, the period from and including the preceding Distribution Date
(or, in the case of the first Distribution Date, the Closing Date)
to and including the day prior to such Distribution Date. With
respect to the Class C Certificates and any Distribution Date, the
calendar month immediately preceding such Distribution Date. All
calculations of interest on each Class of Certificates and the
REMIC 1 Regular Interests will be made on the basis of a 360 day
year comprised of 12 30-day months.
Adjustment Date
: As to each Mortgage Loan, each
date on which the related Mortgage Rate is subject to adjustment,
as provided in the related Mortgage Note.
Affiliate : With respect to any specified Person, any
other Person controlling, controlled by or under common control
with such Person. For the purposes of this definition,
“control” means the power to direct the management and
policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Aggregate Certificate Principal
Balance : For any date of
determination, the sum of the Class A-1 Certificate Principal
Balance, the Class A-2 Certificate Principal Balance, the Class R
Certificate Principal Balance, the Class M-1 Certificate Principal
Balance, the Class M-2 Certificate Principal Balance, the Class B-1
Certificate Principal Balance, the Class B-2 Certificate Principal
Balance and the Class B-3 Certificate Principal Balance, in each
case as of such date of determination.
Agreement : This Pooling and Servicing Agreement and any
and all amendments or supplements hereto made in accordance with
the terms herein.
Applicable State Law
: For purposes of Section 8.12(d),
the Applicable State Law shall be (a) the law of the State of New
York and (b) such other state law whose applicability shall have
been brought to the attention of the Securities Administrator and
the Trustee by either (i) an Opinion of Counsel reasonably
acceptable to the Securities Administrator and the Trustee
delivered to it by the Master Servicer or the Depositor, or (ii)
written notice from the appropriate taxing authority as to the
applicability of such state law.
Applied Realized Loss
Amount : With respect to
any Distribution Date, the amount, if any, by which, the sum of (i)
the Aggregate Certificate Principal Balance and (ii) the Class C
Certificate Principal Balance after distributions of
principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage
Loans as of such Distribution Date.
Appraised Value
: With respect to a Mortgage Loan
the proceeds of which were used to purchase the related Mortgaged
Property, the “Appraised Value” of a Mortgaged Property
is the lesser of (1) the appraised value based on an appraisal made
for the Seller by an independent fee appraiser at the time of the
origination of the related Mortgage Loan, and (2) the sales price
of such Mortgaged Property at such time of origination. With
respect to a Mortgage Loan the proceeds of which were used to
refinance an existing mortgage loan, the “Appraised
Value” is the appraised value of the Mortgaged Property based
upon the appraisal obtained at the time of refinancing.
Assignment
: An assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form,
sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect of record the sale of the
Mortgage Loan to the Trustee for the benefit of Certificateholders,
which assignment, notice of transfer or equivalent instrument may
be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same
county, if permitted by law and accompanied by an Opinion of
Counsel to that effect.
Assignment, Assumption and
Recognition Agreement :
Shall mean the Assignment, Assumption and Recognition Agreement
(attached hereto as Exhibit I), dated as of May 26, 2005, among the
Seller, the Depositor and GreenPoint Mortgage Funding, Inc.
pursuant to which (i) the Mortgage Loans were sold to the Depositor
and (ii) the Servicing Agreement and the rights of the Seller
thereunder were assigned to the Depositor for the benefit of the
Certificateholders.
Auction : The one-time auction conducted by the
Securities Administrator, as described in Section 9.01(b)
hereof.
Auction Date
: The date on which the Auction
occurs.
Available Funds Cap
: With respect to a Distribution
Date, the per annum rate equal to the product of (i) 12 and (ii)
the quotient of (x) the total scheduled interest on the Mortgage
Loans based on the Net Mortgage Rates in effect on the related Due
Date divided by (y) by the aggregate Certificate Principal Balance
of the Offered Certificates and Class B-3 Certificates as of the
first day of the related Accrual Period (or, in the case of the
first Distribution Date, as of the Cut-off Date).
Bankruptcy Code
: The United States Bankruptcy Code,
as amended as codified in 11 U.S.C. §§
101-1330.
Book-Entry
Certificates : Any of the
Certificates that shall be registered in the name of the Depository
or its nominee, the ownership of which is reflected on the books of
the Depository or on the books of a Person maintaining an account
with the Depository (directly, as a “Depository
Participant,” or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 5.06). As of the Closing Date, each of the Class A, Class M
and Class B Certificates constitutes a Class of Book-Entry
Certificates.
Business Day
: Any day other than (1) a Saturday
or a Sunday, or (2) a day on which banking institutions in the
State of California, State of Maryland, State of Minnesota and in
the City of New York, New York are authorized or obligated by law
or executive order to be closed.
Cap Contract
: The amended confirmation and
agreement and any related confirmation thereto, between the Trust
Fund or Trustee and the Cap Contract Counterparty (in the form of
Exhibit N hereto).
Cap Contract Account
: The separate Eligible Account
created and maintained by the Trustee pursuant to Section
4.07(j)(i) in the name of the Trustee for the benefit of the Trust
Fund and designated “Wachovia Bank, National Association, as
Trustee, as trustee, in trust for registered holders of Merrill
Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed
Certificates, Series 2005-A3.” Funds in the Cap Contract
Account shall be held in trust for the Trust Fund for the uses and
purposes set forth in this Agreement.
Cap Contract
Counterparty : Credit
Suisse First Boston International.
Cap Contract Notional
Balance : With respect to
any Distribution Date, the Cap Contract Notional Balance set forth
for such Distribution Date in the One-Month LIBOR Cap Table
attached as an exhibit to the Cap Contract attached hereto as
Exhibit L.
Cap Contract Termination
Date : The day after the
Distribution Date in January 2008.
Cap Rate : With respect to each Distribution Date, the
Cap Rate designated in the Cap Contract.
Ceiling Rate
: With respect to each Distribution
Date with respect to which payments are received on the Cap
Contract, a rate equal to 9.20% per annum.
Certificate
: Any one of the certificates of any
Class executed by the Trustee and authenticated by the Trustee in
substantially the forms attached hereto as Exhibits A-1, A-2, A-3
and A-4.
Certificate Notional
Amount : With respect to
the Class C Certificates and any Distribution Date, an amount equal
to the Stated Principal Balance of the Mortgage Loans as of the
beginning of the related Due Period. The initial Certificate
Notional Amount of the Class C Certificates shall be
$317,382,445.40. For federal income tax purposes, the Certificate
Notional Amount for any Distribution Date shall be an amount equal
to the aggregate Uncertificated Principal Balance of the REMIC 1
Regular Interests for such Distribution Date.
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal
Balance : As to any
Certificate (other than any Class C Certificate or Class P
Certificate) and as of any Distribution Date, the Initial
Certificate Principal Balance as reduced, but not below zero, by
(i) all amounts distributed on previous Distribution Dates on such
class on account of principal; and (ii) such class’s share of
any Applied Realized Loss Amounts for previous Distribution Dates.
Notwithstanding the foregoing, on any Distribution Date relating to
a Due Period in which a Subsequent Recovery has been received by
the Servicer, the Certificate Principal Balance of any class of
Subordinate Certificates then outstanding for which any Applied
Realized Loss Amount has been allocated will be increased, in order
of seniority, by an amount equal to the lesser of (I) the Unpaid
Realized Loss Amount for such class of certificates and (II) the
total of any Subsequent Recovery distributed on such date to the
Certificateholders (reduced by the amount of the increase in the
Certificate Principal Balance of any more senior Class of
Certificates pursuant to this sentence on such Distribution
Date).
Certificate Register
: The register maintained pursuant
to Section 5.02 hereof.
Certificateholder or
Holder : The Person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository) in the
case of any Class of Regular Certificates or the Class R
Certificate, except that solely for the purpose of giving any
consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any
provision hereof that requires the consent of the Holders of
Certificates of a particular Class as a condition to the taking of
any action hereunder. The NIMs Insurer and the Trustee are entitled
to rely conclusively on a certification of the Depositor or any
Affiliate of the Depositor in determining which Certificates are
registered in the name of an Affiliate of the Depositor.
Class : All Certificates bearing the same Class
designation as set forth in Section 5.01 hereof.
Class A Certificate Principal
Balance : For any date of
determination, the sum of the Class A-1 Certificate Principal
Balance, the Class A-2 Certificate Principal Balance and the Class
R Certificate Principal Balance.
Class A Certificates
: Any of the Class A-1, the Class
A-2 and the Class R Certificates.
Class A Principal Distribution
Amount : With respect to
any Distribution Date (1) prior to the Stepdown Date or any
Distribution Date on which a Stepdown Trigger Event exists, 100% of
the Principal Distribution Amount for such Distribution Date and
(2) on or after the Stepdown Date where a Stepdown Trigger Event
does not exist, the excess of (A) the Class A Certificate Principal
Balance immediately prior to such Distribution Date over (B) the
lesser of (i) 81.70% of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period and (ii) the excess of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount;
provided, however, that in no event will the Class A Principal
Distribution Amount with respect to any Distribution Date exceed
the aggregate Certificate Principal Balance of the Class A
Certificates.
Class A-1 Certificate
: Any Certificate designated as a
“Class A-1 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to distributions
as set forth herein.
Class A-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class A-1 Certificates.
Class A-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class A-1 Pass-Through Rate on the Class A-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class A-1 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class A-1 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class A-1 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the
Class A-1 Current Interest with respect to prior Distribution Dates
over (B) the amount actually distributed to the Class A-1
Certificates with respect to interest on such prior Distribution
Dates and (2) interest on such excess (to the extent permitted
by applicable law) at the Class A-1 Pass-Through Rate for the
related Accrual Period.
Class A-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date, 0.270% per
annum and, as of any Distribution Date after the Initial Optional
Termination Date, 0.540% per annum.
Class A-1 Pass-Through
Rate : For the first
Distribution Date, 3.36% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class A-1
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class A-2 Certificate
: Any Certificate designated as a
“Class A-2 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to distributions
as set forth herein.
Class A-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class A-2 Certificates.
Class A-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class A-2 Pass-Through Rate on the Class A-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class A-2 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class A-2 Certificates. For purposes of
calculating interest, principal
distributions on a Distribution Date
will be deemed to have been made on the first day of the Accrual
Period in which such Distribution Date occurs.
Class A-2 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class A-2
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class A-2 Certificates with
respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law)
at the Class A-2 Pass-Through Rate for the related Accrual
Period.
Class A-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.330% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.660% per
annum.
Class A-2 Pass-Through
Rate : For the first
Distribution Date, 3.42% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class A-2
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class B Certificates
: Any of the Class B-1, Class B-2 or
Class B-3 Certificates.
Class B-1 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-1
Certificates.
Class B-1 Certificate
: Any Certificate designated as a
“Class B-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-1 Certificates.
Class B-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-1 Pass-Through Rate on the Class B-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-1 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-1 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-1 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class
B-1 Current Interest with respect to prior Distribution Dates over
(B) the amount actually distributed to the Class B-1 Certificates
with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-1 Pass-Through Rate for the related
Accrual Period.
Class B-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 1.300% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 1.950% per
annum.
Class B-1 Pass-Through
Rate : For the first
Distribution Date, 4.39% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-1
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class B-1 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A Certificate Principal Balance and the Class M Certificate
Principal Balance, have been reduced to zero and a Trigger Event
exists, or as long as a Trigger Event
does not exist, the excess of (1)
the sum of (A) the Class A Certificate Principal Balance (after
taking into account distributions of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class M-1
Certificate Principal Balance (after taking into account
distributions of the Class M-1 Principal Distribution Amount on
such Distribution Date), (C) the Class M-2 Certificate Principal
Balance (after taking into account distributions of the Class M-2
Principal Distribution Amount on such Distribution Date), and (D)
the Class B-1 Certificate Principal Balance immediately prior to
such Distribution Date over (2) the lesser of (A) 96.10% of the
Stated Principal Balance of the Mortgage Loans as of the end of the
immediately preceding Due Period and (B) the excess of the Stated
Principal Balance of the Mortgage Loans as of the end of the
immediately preceding Due Period over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on
any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of Class A Certificates
and Class M Certificates has been reduced to zero, the Class B-1
Principal Distribution Amount will equal the lesser of (x) the
outstanding Certificate Principal Balance of the Class B-1
Certificates and (y) 100% of the Principal Distribution Amount
remaining after any distributions on such Class A Certificates and
Class M Certificates and (II) in no event will the Class B-1
Principal Distribution Amount with respect to any Distribution Date
exceed the Class B-1 Certificate Principal Balance.
Class B-1 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-1 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-1 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-1 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class B-2 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-2
Certificates.
Class B-2 Certificate
: Any Certificate designated as a
“Class B-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-2 Certificates.
Class B-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-2 Pass-Through Rate on the Class B-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-2 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-2 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-2 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class B-2
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class B-2 Certificates with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-2 Pass-Through Rate for the related
Accrual Period.
Class B-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 1.700% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 2.550% per
annum.
Class B-2 Pass-Through
Rate : For the first
Distribution Date, 4.79% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-2
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class B-2 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A Certificate Principal Balance, the Class M Certificate
Principal Balance and the Class B-1 Certificate Principal Balance
have been reduced to zero and a Stepdown Trigger Event exists, or
as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the Class A Certificate Principal Balance (after
taking into account distributions of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class M-1
Certificate Principal Balance (after taking into account
distributions of the Class M-1 Principal Distribution Amount on
such Distribution Date), (C) the Class M-2 Certificate Principal
Balance (after taking into account distributions of the Class M-2
Principal Distribution Amount on such Distribution Date), (D) the
Class B-1 Certificate Principal Balance (after taking into account
distributions of the Class B-1 Principal Distribution Amount on
such Distribution Date) and (E) the Class B-2 Certificate Principal
Balance immediately prior to such Distribution Date over (2) the
lesser of (A) 97.10% of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period and (B) the excess of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on which the Certificate Principal Balance of
each Class of Class A, Class M and Class B-1 Certificates has been
reduced to zero, the Class B-2 Principal Distribution Amount will
equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class B-2 Certificates and (y) 100% of the Principal
Distribution Amount remaining after any distributions on such Class
A, Class M and Class B-1 Certificates and (II) in no event will the
Class B-2 Principal Distribution Amount with respect to any
Distribution Date exceed the Class B-2 Certificate Principal
Balance.
Class B-2 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-2 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-2 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-2 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class B-3 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class B-3
Certificates.
Class B-3 Certificate
: Any Certificate designated as a
“Class B-3 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class B-3 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class B-3 Certificates.
Class B-3 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class B-3 Pass-Through Rate on the Class B-3
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or a Class B-3 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy,
less any Compensating Interest Payment allocated on such
Distribution Date to the Class B-3 Certificates. For purposes of
calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-3 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class B-3
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class B-3 Certificates with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class B-3 Pass-Through Rate for the related
Accrual Period.
Class B-3 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 2.000% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 3.000% per
annum.
Class B-3 Pass-Through
Rate : For the first
Distribution Date, 5.09% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class B-3
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class B-3 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A Certificate Principal Balance, the Class M Certificate
Principal Balance, the Class B-1 Certificate Principal Balance and
the Class B-2 Certificate Principal Balance have been reduced to
zero and a Stepdown Trigger Event exists, or as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the
Class A Certificate Principal Balance (after taking into account
distributions of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal
Distribution Amount on such Distribution Date), (C) the Class M-2
Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on
such Distribution Date), (D) the Class B-1 Certificate Principal
Balance (after taking into account distributions of the Class B-1
Principal Distribution Amount on such Distribution Date), (E) the
Class B-2 Certificate Principal Balance (after taking into account
distributions of the Class B-2 Principal Distribution Amount on
such Distribution Date) and (F) the Class B-3 Certificate Principal
Balance immediately prior to such Distribution Date over (2) the
lesser of (A) 99.20% of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period and (B) the excess of the Stated Principal Balance of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on which the Certificate Principal Balance of
each Class of Class A, Class M, Class B-1 and Class B-2
Certificates has been reduced to zero, the Class B-3 Principal
Distribution Amount will equal the lesser of (x) the outstanding
Certificate Principal Balance of the Class B-3 Certificates and (y)
100% of the Principal Distribution Amount remaining after any
distributions on such Class A, Class M, Class B-1 and Class B-2
Certificates and (II) in no event will the Class B-3 Principal
Distribution Amount with respect to any Distribution Date exceed
the Class B-3 Certificate Principal Balance.
Class B-3 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class B-3 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class B-3 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-3 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance”
Class C Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class C
Certificates.
Class C Certificate
: Any Certificate designated as a
“Class C Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class C Certificates
herein and evidencing (i) a Regular Interest in REMIC 2 and (ii)
the obligation to pay Floating Rate Certificate Carryover
amounts.
Class C Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class C Certificates.
Class C Current
Interest : As of any
Distribution Date, with respect to the Class
C Certificates, (i) the interest accrued on
the Uncertificated Notional Amount during the
related Accrual Period at the applicable Pass-Through Rate
plus any amount previously distributed with respect to interest for
such interest that has been recovered as a voidable preference by a
trustee in bankruptcy minus (ii) the sum of (a) any Prepayment
Interest Shortfall for such Distribution Date, to the extent not
covered by Compensating Interest Payments and (b)
any Relief Act Shortfalls during the related Due
Period.
Class C Distribution
Amount : With respect to
any Distribution Date, the sum of (i) the Current Interest for the
Class C Certificates for such Distribution Date, (ii) any
Overcollateralization Release Amount for such Distribution Date and
(iii) without duplication, any Subsequent Recoveries not
distributed to the Class A Certificates and Class M Certificates on
such Distribution Date; provided, however that on any Distribution
Date after the Distribution Date on which the Certificate Principal
Balances of the Class A, Class M and Class B Certificates have been
reduced to zero, the Class C Distribution Amount shall include the
Overcollateralization Amount.
Class M Certificates
: Any of the Class M-1 Certificates
and Class M-2 Certificates.
Class M Certificate Principal
Balance : For any date of
determination, the sum of the Class M-1 Certificate Principal
Balance and Class M-2 Certificate Principal Balance.
Class M-1 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class M-1
Certificates.
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class M-1 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class M-1 Certificates.
Class M-1 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class M-1 Pass-Through Rate on the Class M-1
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or Class M-1 Interest Carry Forward Amount that is
recovered as a voidable preference by a trustee in bankruptcy, less
any Compensating Interest Payment allocated on such Distribution
Date to the Class M-1 Certificates. For purposes of calculating
interest, principal distributions on a Distribution Date will be
deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class M-1 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class
M-1 Current Interest with respect to prior Distribution Dates over
(B) the amount actually distributed to the Class M-1
Certificates with respect to interest on such prior Distribution
Dates and (2) interest on such excess (to the extent permitted
by applicable law) at the Class M-1 Pass-Through Rate for the
related Accrual Period.
Class M-1 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.440% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.660% per
annum.
Class M-1 Pass-Through
Rate : For the first
Distribution Date, 3.53% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class M-1
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class M-1 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A Certificate Principal Balance has been reduced to zero and
a Stepdown Trigger Event exists, or as long as a Stepdown Trigger
Event does not exist, the excess of (1) the sum of (A) the Class A
Certificate Principal Balance (after taking into account
distributions of the Class A Principal Distribution Amount on such
Distribution Date) and (B) the Class M-1 Certificate Principal
Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 88.10% of the Stated Principal Balances
of the Mortgage Loans as of the end of the immediately preceding
Due Period and (B) the excess of the Stated Principal Balances for
the Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on
which the Certificate Principal
Balance of each Class of Class A Certificates has been reduced to
zero, the Class M-1 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the
Class M-1 Certificates and (y) 100% of the Principal Distribution
Amount remaining after any distributions on such Class A
Certificates and (II) in no event will the Class M-1 Principal
Distribution Amount with respect to any Distribution Date exceed
the Class M-1 Certificate Principal Balance.
Class M-2 Applied Realized Loss
Amount : As of any
Distribution Date, the sum of all Applied Realized Loss Amounts
with respect to the Mortgage Loans which have been applied to the
reduction of the Certificate Principal Balance of the Class M-2
Certificates.
Class M-2 Certificate
: Any Certificate designated as a
“Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to distributions
as set forth herein.
Class M-2 Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class M-2 Certificates.
Class M-2 Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class M-2 Pass-Through Rate on the Class M-2
Certificate Principal Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of
Current Interest or Class M-2 Interest Carry Forward Amount that is
recovered as a voidable preference by a trustee in bankruptcy, less
any Compensating Interest Payment allocated on such Distribution
Date to the Class M-2 Certificates. For purposes of calculating
interest, principal distributions on a Distribution Date will be
deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class M-2 Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class M-2
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class M-2 Certificates with
respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law)
at the Class M-2 Pass-Through Rate for the related Accrual
Period.
Class M-2 Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.650% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.975% per
annum.
Class M-2 Pass-Through
Rate : For the first
Distribution Date, 3.74% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class M-2
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Class M-2 Principal Distribution
Amount : With respect to
any Distribution Date on or after the Stepdown Date, 100% of the
Principal Distribution Amount for such Distribution Date if the
Class A Certificate Principal Balance and the Class M-1 Certificate
Principal Balance have been reduced to zero and a Stepdown Trigger
Event exists, or as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the Class A Certificate
Principal Balance (after taking into account distributions of the
Class A Principal Distribution Amount on such Distribution Date),
(B) the Class M-1 Certificate Principal Balance (after taking into
account distributions of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class M-2 Certificate
Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 92.80% of the Stated Principal Balances of
the Mortgage Loans as of the end of the immediately preceding Due
Period and (B) the excess of the Stated Principal Balances of the
Mortgage Loans as of the end of the immediately preceding Due
Period over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior
to the Stepdown Date on which the Certificate Principal Balance of
each Class of Class A Certificates and the Class M-1 Certificates
has been reduced to zero, the Class M-2 Principal Distribution
Amount will equal the lesser of (x) the outstanding Certificate
Principal Balance of the Class M-2 Certificates and (y) 100% of the
Principal Distribution Amount remaining after any distributions on
such Class A
Certificates and Class M-1
Certificates and (II) in no event will the Class M-2 Principal
Distribution Amount with respect to any Distribution Date exceed
the Class M-2 Certificate Principal Balance.
Class M-2 Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Class M-2 Applied Realized
Loss Amount over (2) the sum of (x) all distributions in reduction
of the Class M-2 Unpaid Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-2 Certificates pursuant to the
last sentence of the definition of “Certificate Principal
Balance.”
Class P Certificate
: Any Certificate designated as a
“Class P Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, and evidencing an interest in the Grantor
Trust.
Class R Certificate
: Any Certificate designated as a
“Class R Certificate” on the face thereof, in the form
of Exhibit A-3 hereto, representing the right to distributions as
set forth herein.
Class R Certificate Principal
Balance : As of any date
of determination, the aggregate Certificate Principal Balance of
the Class R Certificate.
Class R Current
Interest : As of any
Distribution Date, the interest accrued during the related Accrual
Period at the Class R Pass-Through Rate on the Class R Certificate
Principal Balance as of such Distribution Date plus the portion of
any previous distributions on such Class in respect of Current
Interest or a Class R Interest Carry Forward Amount that is
recovered as a voidable preference by a trustee in bankruptcy, less
any Compensating Interest Payment allocated on such Distribution
Date to the Class R Certificate. For purposes of calculating
interest, principal distributions on a Distribution Date will be
deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class R-1 Interest
: The residual interest in REMIC
1.
Class R-2 Interest
: The residual interest in REMIC
2.
Class R Interest Carry Forward
Amount : As of any
Distribution Date, the sum of (1) the excess of (A) the Class R
Current Interest with respect to prior Distribution Dates over (B)
the amount actually distributed to the Class R Certificate with
respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by
applicable law) at the Class R Pass-Through Rate for the related
Accrual Period.
Class R Margin
: As of any Distribution Date up to
and including the Initial Optional Termination Date for the
Certificates, 0.270% per annum and, as of any Distribution Date
after the Initial Optional Termination Date, 0.540% per
annum.
Class R Pass-Through
Rate : For the first
Distribution Date, 3.36% per annum. As of any Distribution Date
thereafter, the least of (1) One-Month LIBOR plus the Class R
Margin, (2) the Available Funds Cap, (3) the Maximum Rate Cap and
(4) the Hard Cap for such Distribution Date.
Closing Date
: May 26, 2005.
Code : The Internal Revenue Code of 1986, including
any successor or amendatory provisions.
Commission
: The Securities and Exchange
Commission.
Compensating Interest
Payment : As defined in
Section 4.11.
Corporate Trust Office
: The principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business in connection with this Agreement shall be
administered, which office at the date of the execution
of this instrument is located at
Wachovia Bank, National Association, 401 South Tryon Street, 12
th Floor, Charlotte, NC 28288-1179, Attention: Corporate
Trust Group - Merrill Lynch Mortgage Investors, Inc., MLMI Series
2005-A3, or at such other address as the Trustee may designate from
time to time by notice to the Certificateholders, the Depositor and
the Master Servicer.
Corresponding Class
: With respect to each REMIC 1
Regular Interest other than REMIC 1 Regular Interests AA and ZZ,
the Certificate with the corresponding designation.
Current Interest
: Any of the Class A-1 Current
Interest, the Class A-2 Current Interest, the Class R Current
Interest, the Class M-1 Current Interest, the Class M-2 Current
Interest, the Class B-1 Current Interest, the Class B-2 Current
Interest, the Class B-3 Current Interest and the Class C Current
Interest.
Curtailment
: Any Principal Prepayment made by a
Mortgagor which is not a Principal Prepayment in Full.
Custodial Agreement
: An agreement, dated as of the
Closing Date among the Depositor, the Master Servicer, the Trustee
and the Custodian in substantially the form of Exhibit G
hereto.
Custodian : Wells Fargo Bank, N.A., or any successor
custodian appointed pursuant to the provisions hereof and of the
Custodial Agreement.
Cut-off Date
: May 1, 2005.
Cut-off Date Principal
Balance : As to any
Mortgage Loan, the unpaid principal balance thereof as of the close
of business on the calendar day immediately preceding the Cut-off
Date after application of all payments of principal due on or prior
to the Cut-off Date, whether or not received, and all Principal
Prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due
Dates on and after the Cut-off Date.
Debt Service Reduction
: Any reduction of the Monthly
Payments which a Mortgagor is obligated to pay with respect to a
Mortgage Loan as a result of any proceeding under the Bankruptcy
Code or any other similar state law or other proceeding.
Defective Mortgage
Loan : A Mortgage Loan
replaced or to be replaced by one or more Substitute Mortgage
Loans.
Deficient Valuation
: With respect to any Mortgage Loan,
a valuation of the related Mortgaged Property by a court of
competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results
from a proceeding initiated under the Bankruptcy Code.
Definitive
Certificates : As defined
in Section 5.06.
Denomination
: With respect to each Certificate,
the amount set forth on the face thereof as the “Initial
Principal Balance of this Certificate.”
Depositor : Merrill Lynch Mortgage Investors, Inc., a
Delaware corporation, or any successor in interest.
Depository
: The initial Depository shall be
The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a
“clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Agreement
: With respect to Classes of
Book-Entry Certificates, the agreement between the Trustee and the
initial Depository.
Depository Participant
: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Designated Depository
Institution : A
depository institution (commercial bank, federal savings bank,
mutual savings bank or savings and loan association) or trust
company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date
: With respect to any Distribution
Date, the 15 th day of the month of such Distribution
Date or, if such 15 th day is not a Business Day, the
immediately preceding Business Day.
Disqualified
Organization : Any of the
following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are
subject to tax and, except for Freddie Mac or any successor
thereto, a majority of its board of directors is not selected by
such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any
of the foregoing, (iii) any organization (other than certain
farmers’ cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code or (v)
any other Person so designated by the Trustee based upon an Opinion
of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause the REMIC Trust contained in
the Trust or any Person having an ownership interest in the
Residual Certificate (other than such Person) to incur a liability
for any federal tax imposed under the Code that would not otherwise
be imposed but for the transfer of an ownership interest in a
Residual Certificate to such Person. The terms “United
States,” “State” and “international
organization” shall have the meanings set forth in Section
7701 of the Code or successor provisions.
Distribution Account
: The trust account or accounts
created and maintained pursuant to Section 4.04, which shall be
denominated “Wachovia Bank, National Association, as Trustee
f/b/o holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MLMI Series 2005-A3 - Distribution
Account.” The Distribution Account shall be an Eligible
Account.
Distribution Account Deposit
Date : The Business Day
prior to each Distribution Date.
Distribution Date
: The 25 th day of each
calendar month, or if such 25 th day is not a Business
Day, the next succeeding Business Day, commencing in June
2005.
Due Date : With respect to each Mortgage Loan, the date
in each month on which its Monthly Payment is due if such due date
is the first day of a month and otherwise is deemed to be the first
day of the following month or such other date specified in the
Servicing Agreement.
Due Period
: With respect to any Distribution
Date, the period beginning on the second day of the calendar month
preceding the calendar month in which such Distribution Date occurs
and ending on the first day of the month in which such Distribution
Date occurs.
Eligible Account
: An account that is (i) maintained
with a depository institution the long-term unsecured debt
obligations of which are rated by each Rating Agency in one of its
two highest rating categories, or (ii) maintained with the
corporate trust department of a bank which (A) has a rating of at
least Baa3 or P-3 by Moody’s and (B) is either the Depositor
or the corporate trust department of a national bank or banking
corporation which has a rating of at least A-1 by S&P or F1 by
Fitch, or (iii) an account or accounts the deposits in which are
fully insured by the FDIC, or (iv) an account or accounts,
acceptable to each Rating Agency without reduction or withdrawal of
the rating of any Class of Certificates,
as evidenced in writing, by a
depository institution in which such accounts are insured by the
FDIC (to the limit established by the FDIC), the uninsured deposits
in which accounts are otherwise secured such that, as evidenced by
an Opinion of Counsel delivered to and acceptable to the Trustee,
the NIMs Insurer and each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account and a
perfected first security interest against any collateral (which
shall be limited to Permitted Investments) securing such funds that
is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained, or
(v) maintained at an eligible institution whose commercial paper,
short-term debt or other short-term deposits are rated at least
A-1+ by S&P and F-1+ by Fitch, or (vi) maintained with a
federal or state chartered depository institution the deposits in
which are insured by the FDIC to the applicable limits and the
short-term unsecured debt obligations of which (or, in the case of
a depository institution that is a subsidiary of a holding company,
the short-term unsecured debt obligations of such holding company)
are rated A-1 by S&P or Prime-1 by Moody’s at the time
any deposits are held on deposit therein, (vii) a segregated trust
account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary
capacity, that is acceptable to the Rating Agencies or (viii)
otherwise acceptable to each Rating Agency, as evidenced by a
letter from each Rating Agency to the Trustee and the NIMs
Insurer.
ERISA : The Employee Retirement Income Security Act of
1974, including any successor or amendatory provisions.
ERISA-Qualifying
Underwriting : A best
efforts or firm commitment underwriting or private placement that
would satisfy the requirements of Prohibited Transaction Exemption
90-29, Exemption Application No. D-8012, 55 Fed. Reg. 21459 (1990),
as amended, granted to the Underwriter by the United States
Department of Labor (or any other applicable underwriter’s
exemption granted by the United States Department of Labor),
except, in relevant part, for the requirement that the certificates
have received a rating at the time of acquisition that is in one of
the three (or four, in the case of a “designated
transaction”) highest generic rating categories by at least
one of the Rating Agencies.
ERISA Restricted
Certificates : Any of the
Class B-3, Class C, Class P and Class R Certificates.
Event of Default
: As defined in Section 7.01
hereof.
Excess Interest
: On any Distribution Date, for each
Class of the Class A, Class M and Class B Certificates, the excess,
if any, of (1) the amount of interest such Class of Certificates is
entitled to receive on such Distribution Date at its Pass-Through
Rate over (2) the amount of interest such Class of Certificates
would have been entitled to receive on such Distribution Date had
the Pass-Through Rate for such Class been calculated using the Net
Rate instead of the Net WAC.
Excess Liquidation
Proceeds : To the extent
that such amount is not required by law to be paid to the related
Mortgagor, the amount, if any, by which Liquidation Proceeds with
respect to a Liquidated Mortgage Loan exceed the sum of (i) the
Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the
last day of the month in which the related Liquidation Date occurs,
plus (ii) related Liquidation Expenses.
Exchange Act
: The Securities Exchange Act of
1934, as amended.
Extra Principal Distribution
Amount : With respect to
any Distribution Date, the lesser of (1) the Monthly Excess
Interest Amount for such Distribution Date and (2) the excess, if
any, of (A) the sum of (x) the aggregate Certificate Principal
Balance of the Offered Certificates and Class B-3 Certificates
immediately prior to such Distribution Date and (y) approximately
$1,269,529 over (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of the beginning of the related Due Period
(reduced by Realized Losses on the Mortgage Loans during the
related Prepayment Period).
Extraordinary Trust Fund
Expenses : Any amounts
reimbursable to the Master Servicer or the Depositor pursuant to
this Agreement, including but not limited to Sections 4.03, 4.05
and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this
Agreement, including but not limited to Section 9.05, and any other
costs, expenses, liabilities and losses borne by the Trust Fund
(exclusive of any cost, expense, liability or
loss that is specific to a
particular Mortgage Loan or REO Property and is taken into account
in calculating a Realized Loss in respect thereof) for which the
Trust Fund has not and, in the reasonable good faith judgment of
the Trustee, shall not, obtain reimbursement or indemnification
from any other Person.
Fannie Mae
: A federally chartered and
privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor
thereto.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
Final Certification
: The certification substantially in
the form of Exhibit Two to the Custodial Agreement.
Fitch : Fitch, Inc., or any successor in
interest.
Floating Rate Certificate
Carryover : With respect
to a Distribution Date, in the event that the Pass-Through Rate for
a class of Class A, Class M or Class B Certificates is based upon a
cap, the excess of (1) the amount of interest that such Class would
have been entitled to receive on such Distribution Date had the
Pass-Through Rate for that Class not been calculated based on a
cap, up to but not exceeding greatest of (x) the Maximum Rate Cap
or (y) the sum of (i) the Available Funds Cap and (ii) the product
of (A) 12 and (B) the quotient obtained by dividing (I) an amount
equal to the proceeds, if any, payable under the related Cap
Contract with respect to such Distribution Date by (II) the
aggregate Certificate Principal Balance of each of the Classes of
Offered Certificates for such Distribution Date or (C) 11.50% per
annum over (2) the amount of interest such class was entitled to
receive on such Distribution Date based on the cap, together with
(i) the unpaid portion of any such excess from prior Distribution
Dates (and interest accrued thereon at the then applicable
Pass-Through Rate, without giving effect to the related cap) and
(ii) any amount previously distributed with respect to Floating
Rate Certificate Carryover for such class that is recovered as a
voidable preference by a trustee in bankruptcy.
Freddie Mac
: A corporate instrumentality of the
United States created and existing under Title III of the Emergency
Home Finance Act of 1970, as amended, or any successor
thereto.
Grantor Trust
: The grantor trust described in
Section 2.08 hereof.
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.
Hard Cap : With respect to a Distribution Date, the per
annum rate equal to 11.50% per annum.
Indemnified Persons
: The Trustee, the Master Servicer,
the Depositor, the NIMs Insurer and the Securities Administrator
and their officers, directors, agents and employees and, with
respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Indenture : An indenture relating to the issuance of notes
guaranteed by the NIMs Insurer.
Index : The index, if any, specified in a Mortgage
Note by reference to which the related Mortgage Interest Rate will
be adjusted from time to time.
Initial Adjustment
Date : As to any Mortgage
Loan, the first Adjustment Date following the origination of such
Mortgage Loan.
Initial Certificate Principal
Balance : With respect to
any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date as
set forth in Section 5.01 hereof.
Initial Certification
: The certification substantially in
the form of Exhibit One to the Custodial Agreement.
Initial Mortgage Rate
: As to each Mortgage Loan, the
Mortgage Rate in effect prior to the Initial Adjustment
Date.
Initial Optional Termination
Date : The first
Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is equal to or less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
Insurance Policy
: With respect to any Mortgage Loan,
any standard hazard insurance policy, flood insurance policy or
title insurance policy.
Insurance Proceeds
: Amounts paid by the insurer under
any Insurance Policy covering any Mortgage Loan or Mortgaged
Property other than amounts required to be paid over to the
Mortgagor pursuant to law or the related Mortgage Note or Security
Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Insured Expenses
: Expenses covered by an Insurance
Policy or any other insurance policy with respect to a Mortgage
Loan or the related Mortgaged Property.
Interest Carry Forward
Amount : Any of the Class
A-1 Interest Carry Forward Amount, the Class A-2 Interest Carry
Forward Amount, the Class R Interest Carry Forward Amount, the
Class M-1 Interest Carry Forward Amount, the Class M-2 Interest
Carry Forward Amount, the Class B-1 Interest Carry Forward Amount,
the Class B-2 Interest Carry Forward Amount or the Class B-3
Interest Carry Forward Amount, as the case may be.
Interest Determination
Date : With respect to
the Certificates, (i) for any Accrual Period other than the first
Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period and (ii) for the first Accrual
Period, May 24, 2005.
Interest Funds
: With respect to any Distribution
Date, the sum, without duplication, of (1) all scheduled interest
due during the related Due Period and received before the related
Servicer Remittance Date or advanced on or before the related
Servicer Remittance Date less the Servicing Fee, (2) all Monthly
Advances relating to interest with respect to the Mortgage Loans
and such Distribution Date, (3) all Compensating Interest with
respect to the Mortgage Loans and such Distribution Date, (4)
Liquidation Proceeds with respect to the Mortgage Loans (to the
extent such Liquidation Proceeds relate to interest) collected
during the related Prepayment Period, (5) all proceeds of any
purchase pursuant to Section 2.02 or 2.03 during the related
Prepayment Period or pursuant to Section 9.01 not later than the
related Determination Date (to the extent that such proceeds relate
to interest) less the Servicing Fee, (6) all Prepayment Charges
received with respect to the Mortgage Loans during the related
Prepayment Period and (7) refunds, if any, of amounts paid to
either of the MI Insurers as MI Insurer Fees, less (A) all
Non-Recoverable Advances relating to interest and (B) other amounts
reimbursable to the Servicer, the Master Servicer, the Securities
Administrator and the Trustee pursuant to this
Agreement.
Latest Possible Maturity
Date : The latest
maturity date for any Mortgage Loan in the Trust Fund plus one
month.
LIBOR Business Day
: Any day on which banks in the City
of London, England and New York City, U.S.A. are open and
conducting transactions in foreign currency and
exchange.
Liquidated Mortgage
Loan : Any defaulted
Mortgage Loan as to which the Servicer has determined that all
amounts it expects to recover from or on account of such Mortgage
Loan have been recovered.
Liquidation Date
: With respect to any Liquidated
Mortgage Loan, the date on which the Servicer has certified that
such Mortgage Loan has become a Liquidated Mortgage
Loan.
Liquidation Proceeds
: Amounts received in connection
with the liquidation of a defaulted Mortgage Loan, whether through
trustee’s sale, foreclosure sale, Insurance Proceeds,
condemnation proceeds or otherwise.
Loan-to-Value Ratio
: With respect to any Mortgage Loan,
the fraction, expressed as a percentage, the numerator of which is
the original principal balance of the related Mortgage Loan and the
denominator of which is the lesser of (X) the Appraised Value of
the related Mortgaged Property and (Y) the sales price of the
related Mortgaged Property at the time of origination.
Losses : Any losses, claims, damages, liabilities or
expenses collectively.
Marker Rate
: With respect to the Class C
Certificates and any Distribution Date, a per annum rate equal to
two (2) multiplied by the weighted average of the Pass-Through
Rates for each REMIC 1 Regular Interest (other than REMIC 1 Regular
Interest AA), with the rates on each such REMIC 1 Regular Interest
(other than REMIC 1 Regular Interest ZZ) subject to a cap equal to
the Pass-Through Rate for the Corresponding Class for such REMIC 1
Regular Interest, and the rate on REMIC 1 Regular Interest ZZ
subject to a cap of zero, in each case for purposes of this
calculation.
Master Servicer
: Wells Fargo Bank, N.A., a national
banking association, or its successor in interest.
Master Servicer Collection
Account : The separate
Eligible Account created and initially maintained by the Master
Servicer pursuant to Section 4.02 in the name of the Trustee for
the benefit of the Certificateholders and designated “Wells
Fargo Bank, N.A., as Master Servicer for Wachovia Bank, National
Association, as Trustee, in trust for registered holders of Merrill
Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed
Certificates, Series 2005-A3.” Funds in the Master Servicer
Collection Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Master Servicing
Compensation : The
meaning specified in Section 3.14.
Maximum Mortgage Rate
: With respect to each Mortgage
Loan, the maximum rate of interest set forth as such in the related
Mortgage Note.
Maximum Rate Cap
: With respect to a Distribution
Date, the per annum rate equal to the product of (i) 12 and (ii)
the quotient of (x) the total scheduled interest on the Mortgage
Loans based on the maximum lifetime Net Mortgage Rates in effect on
the related Due Date divided by (y) the aggregate Certificate
Principal Balance of the Offered Certificates and Class B-3
Certificates as of the first day of the related Accrual Period (or,
in the case of the first Distribution Date, as of the Cut-off
Date).
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS Loan : Any Mortgage Loan registered with MERS on the
MERS System.
MERS System
: The system of recording transfers
of mortgage electronically maintained by MERS.
MIN : The loan number for any MERS Loan.
Minimum Mortgage Rate
: With respect to each Mortgage
Loan, the minimum rate of interest set forth as such in the related
Mortgage Note.
Minimum Required
Overcollateralization Amount : An amount equal to the product of (x) 0.40%
and (y) the Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date.
MLMLI : Merrill Lynch Mortgage Lending,
Inc.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns.
Monthly Advance
: An advance of principal or
interest required to be made by the Servicer pursuant to the
Servicing Agreement or the Master Servicer pursuant to Section
4.10.
Monthly Excess Interest
Amount : With respect to
each Distribution Date, the amount, if any, by which the Interest
Funds for such Distribution Date exceeds the aggregate amount
distributed on such Distribution Date pursuant to Section 4.07(a)
(other than the last clause thereof).
Monthly Payment
: With respect to any Mortgage Loan,
the scheduled monthly payment of principal and interest on such
Mortgage Loan which is payable by the related Mortgagor from time
to time under the related Mortgage Note, determined: (a) after
giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any
extension granted or agreed to by the Servicer pursuant to the
Servicing Agreement; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when
due.
Monthly Statement
: The statement made available to
the Certificateholders pursuant to Section 4.09(a).
Moody’s
: Moody’s Investors Service,
Inc. or any successor in interest.
Mortgage : With respect to each Mortgage Loan, the
mortgage, deed of trust or other instrument with all riders
attached thereto creating a first lien or a first priority
ownership interest in an estate in fee simple in real property
securing a Mortgage Note.
Mortgage File
: The mortgage documents listed in
Section 2.01(b) hereof pertaining to a particular Mortgage Loan and
any additional documents delivered to the Trustee to be added to
the Mortgage File pursuant to this Agreement.
Mortgage 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.
Mortgaged Property
: Land and improvements securing the
indebtedness of a Mortgagor under the related Mortgage Loan or, in
the case of REO Property, such REO Property.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note from time to time.
Mortgagor : The obligor on a Mortgage Note.
Net Liquidation
Proceeds : As to any
Liquidated Mortgage Loan, Liquidation Proceeds net of (i)
Liquidation Expenses which are payable therefrom by the 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).
Net Rate : With respect to any Distribution Date, the
weighted average Net Mortgage Rate for the Mortgage Loans
calculated based on the respective Net Mortgage Rates and the
Stated Principal Balances of such Mortgage Loans as of the
preceding Distribution Date (or, in the case of the first
Distribution Date, as of the Cut-off Date).
Net WAC : With respect to any Distribution Date, a per
annum rate equal to 12 times the quotient obtained by dividing (x)
the total scheduled interest on the Mortgage Loans based on the Net
Mortgage Rates in effect on the related Due Date by (y) the
Aggregate Certificate Principal Balance as of the preceding
Distribution Date (or, in the case of the first Distribution Date,
as of the Cut-off Date).
NIM Notes : The notes to be issued pursuant to the
Indenture.
NIMs Insurer
: Any of the one or more insurers,
if any, that is guaranteeing certain payments under any NIM Notes;
provided, that upon the payment in full of the NIM Notes, all
rights of the NIMs Insurer hereunder shall terminate.
NIMs Insurer Default
: As defined in Section
10.14.
Nonrecoverable Advance
: Any advance or Monthly Advance (i)
which was previously made or is proposed to be made by the Master
Servicer (as successor servicer), the Trustee (as successor Master
Servicer) or Servicer and (ii) which, in the good faith judgment of
the Master Servicer, the Trustee or Servicer, will not or, in the
case of a proposed advance or Monthly Advance, would not, be
ultimately recoverable by the Master Servicer (as successor
servicer), the Trustee (as successor Master Servicer) or Servicer
from Liquidation Proceeds, Insurance Proceeds or future payments on
the Mortgage Loan for which such advance or Monthly Advance was
made.
Offered Certificate
: The Class A-1, Class A-2, Class
M-1, Class M-2, Class B-1, Class B-2 and Class R
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.
One-Month LIBOR
: With respect to any Accrual
Period, the rate determined by the Securities Administrator on the
related Interest Determination Date on the basis of (a) the offered
rates for one-month United States dollar deposits, as such rates
appear on Telerate page 3750, as of 11:00 a.m. (London time) on
such Interest Determination Date or (b) if such rate does not
appear on Telerate Page 3750 as of 11:00 a.m. (London time), the
offered rates of the Reference Banks for one-month United States
dollar deposits, as such rates appear on the Reuters Screen LIBO
Page, as of 11:00 a.m. (London time) on such Interest Determination
Date. If One-Month LIBOR is determined pursuant to clause (b)
above, on each Interest Determination Date, One-Month LIBOR for the
related Accrual Period will be established by the Trustee as
follows:
(i) If
on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the arithmetic mean of such offered
quotations (rounded upwards if necessary to the nearest whole
multiple of 0.03125%).
(ii) If
on such Interest Determination Date fewer than two Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i) One-Month LIBOR as
determined on the previous Interest Determination Date and (ii) the
Reserve Interest Rate.
Opinion of Counsel
: A written opinion of counsel who
is or are acceptable to the Trustee and who, unless required to be
Independent (an “Opinion of Independent Counsel”), may
be internal counsel for the Master Servicer or the
Depositor.
Optional Termination
: The termination of the Trust Fund
hereunder pursuant to Section 9.01(a) hereof.
Optional Termination
Amount : The amount
received by the Securities Administrator in connection with any
purchase of all of the Mortgage Loans and REO Properties pursuant
to Section 9.01(b) hereof.
Optional Termination
Price : On any date after
the Initial Optional Termination Date, an amount equal to the sum
of (A) the aggregate Stated Principal Balance of each Mortgage Loan
(other than any Mortgage Loan that has become an REO Property) as
of the Distribution Date on which the proceeds of the Optional
Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Rate as of the Due Date
preceding the Distribution Date on which the proceeds of the
Optional Termination are distributed to Certificateholders and the
fair market value of any REO Property, plus accrued interest
thereon as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to Certificateholders, (B) any
unreimbursed out-of-pocket costs and expenses owed to the Master
Servicer, the Trustee or the Securities Administrator (including
any amounts incurred by the Securities Administrator in connection
with conducting the Auction), the Servicer or the Master Servicer
and any unpaid or unreimbursed Servicing Fees, Monthly Advances and
Servicing Advances, (C) any unreimbursed costs, penalties and/or
damages incurred by the Trust Fund in connection with any violation
relating to any of the Mortgage Loans of any predatory or abusive
lending law and (D) in the event an Auction has been conducted, all
reasonable fees and expenses incurred by the Trust to conduct the
Auction.
Originator
: GreenPoint Mortgage Funding,
Inc.
OTS : The Office of Thrift Supervision.
Outstanding
: With respect to the Certificates
as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except: (1)
Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and (2) Certificates in exchange for
which or in lieu of which other Certificates have been executed by
the Trustee and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage
Loan : With respect to
any Due Date, a Mortgage Loan which, prior to such Due Date, was
not the subject of a Principal Prepayment in Full, did not become a
Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal
Balance : As of the time
of any determination, the principal balance of a Mortgage Loan
remaining to be paid by the Mortgagor, or, in the case of an REO
Property, the principal balance of the related Mortgage Loan
remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with
respect thereto to the extent applied to principal.
Overcollateralization
Amount : As of any date
of determination, the excess of (1) the Stated Principal Balance of
the Mortgage Loans over (2) the Certificate Principal Balance of
the Certificates (other than the Class P Certificates and the Class
C Certificates).
Overcollateralization Reduction
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of
(i) the Overcollateralization Amount for such Distribution Date
(assuming that 100% of the Principal Remittance Amount is applied
as a principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date
(with the amount pursuant to clause (y) deemed to be $0 if the
Overcollateralization Amount is less than or equal to the
Overcollateralization Target Amount on that Distribution
Date).
Overcollateralization Target
Amount : With respect to
any Distribution Date, 0.40% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
Ownership Interest
: As to any Certificate, any
ownership interest in such Certificate including any interest in
such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate
: With respect to any Class A
Certificates, Class B Certificates or Class M Certificates, the
corresponding Pass-Through Rate for such Class of
Certificates.
With respect to the Class C
Certificates, a per annum rate equal to the percentage equivalent
of a fraction, (x) the numerator of which is the sum, for each
REMIC 1 Regular Interest, of the excess of the REMIC 1 Pass-Through
Rate for such REMIC 1 Regular Interest over the Marker Rate,
applied to a notional amount equal to the Uncertificated Principal
Balance of such REMIC 1 Regular Interest and (y) the denominator of
which is the aggregate Uncertificated Principal Balance of the
REMIC 1 Regular Interests.
Paying Agent
: The Trustee or any successor
Paying Agent appointed by the Trustee.
Percentage Interest
: With respect to:
(iii) any
Class, the percentage interest in the undivided beneficial
ownership interest evidenced by such Class which shall be equal to
the Certificate Principal Balance of such Class divided by the
aggregate Certificate Principal Balance of all Classes;
and
(iv) any
Certificate, the Percentage Interest evidenced thereby of the
related Class shall equal the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of such Class; except that in the
case of any Class P Certificates, the Percentage Interest with
respect to such Certificate shown on the face of such
Certificate.
Periodic Rate Cap
: With respect to each Mortgage
Loan, the maximum adjustment that can be made to the Mortgage
Interest Rate on each Interest Adjustment Date in accordance with
its terms, regardless of changes in the applicable
Index.
Permitted Investments
: At any time, any one or more of
the following obligations and securities:
(v) obligations
of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United
States;
(vi) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency rating the
Certificates;
(vii) commercial
or finance company paper, other than commercial or finance company
paper issued by the Depositor, the Trustee or any of its
Affiliates, which is then receiving the highest commercial or
finance company paper rating of each such Rating Agency;
(viii) certificates
of deposit, demand or time deposits, or bankers’ acceptances
(other than banker’s acceptances issued by the Trustee or any
of its Affiliates) issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company are then rated one of the
two highest long-term and the highest short-term ratings of each
such Rating Agency for such securities;
(ix) demand
or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(x) guaranteed
reinvestment agreements issued by any bank, insurance company or
other corporation rated in the two highest long-term or the highest
short-term ratings of each Rating Agency containing, at the time of
the issuance of such agreements, such terms and conditions as will
not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any such Rating Agency as evidenced
by a letter from each Rating Agency;
(xi) repurchase
obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
clause (v) above;
(xii) securities
(other than stripped bonds, stripped coupons or instruments sold at
a purchase price in excess of 115% of the face amount thereof)
bearing interest or sold at a discount issued by any corporation,
other than the Trustee or any of its Affiliates, incorporated under
the laws of the United States or any state thereof which, at the
time of such investment, have one of the two highest long term
ratings of each Rating Agency;
(xiii) interests
in any money market fund (including those managed or advised by the
Master Servicer or the Trustee or any of their respective
affiliates) which at the date of acquisition of the interests in
such fund and throughout the time such interests are held in such
fund has the highest applicable long term rating by each Rating
Agency rating such fund; and
(xiv) short
term investment funds sponsored by any trust company or national
banking association incorporated under the laws of the United
States or any state thereof, other than the Trustee or any of its
Affiliates, which on the date of acquisition has been rated by each
such Rating Agency in their respective highest applicable rating
category;
provided, that no such instrument
shall be a Permitted Investment if such instrument (i) evidences
the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a
premium or above par or (iii) is purchased at a deep discount;
provided, further, that no such instrument shall be a Permitted
Investment (A) if such instrument evidences principal and interest
payments derived from obligations underlying such instrument and
the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at
par of such underlying obligations, or (B) if it may be redeemed at
a price below the purchase price (the foregoing clause (B) not to
apply to investments in units of money market funds pursuant to
clause (ix) above); and provided, further, (I) that no amount
beneficially owned by any REMIC (including, without limitation, any
amounts collected by the Servicer or Master Servicer but not yet
deposited in the Master Servicer Collection Account) may be
invested in investments (other than money market funds) treated as
equity interests for Federal income tax purposes, unless the
Servicer and/or the Trustee shall receive an Opinion of Counsel
acceptable to the Servicer and/or the Trustee, at the expense of
the party requesting that such investment be made, to the effect
that such investment will not adversely affect the status of the
any REMIC provided for herein as a REMIC under the Code or result
in imposition of a tax on the Trust Fund or any REMIC provided for
herein and (II) each such investment must be a “permitted
investment” within the meaning of Section 860G(a)(5) of the
Code. Permitted Investments that are subject to prepayment or call
may not be purchased at a price in excess of par.
Permitted Transferee
: Any Person other than (i) the
United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing, (ii) a foreign
government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section
521 of the Code) that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to the
Class R Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, and (v) a Person
that is not a citizen or resident of the United States, a
corporation or
partnership (or other entity treated
as a corporation or partnership for United States federal income
tax purposes) created or organized in or under the laws of the
United States or any State thereof or the District of Columbia or
an estate whose income from sources without the United States is
includable in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade
or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons
have authority to control all substantial decisions of the trust,
unless, in the case of this clause (v), such Person has furnished
the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or applicable successor form. The terms
“United States,” “State” and
“International Organization” shall have the meanings
set forth in Section 7701 of the Code. A corporation will not be
treated as an instrumentality of the United States or of any State
thereof for these purposes if all of its activities are subject to
tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected
by such government unit.
Person : Any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any
agency or political subdivision thereof.
Pool Stated Principal
Balance : As to any
Distribution Date, the aggregate of the Stated Principal Balances,
as of such Distribution Date, of the Mortgage Loans that were
Outstanding Mortgage Loans as of such date.
Prepayment Assumption
: A rate or rates of prepayment, as
described in the Prospectus Supplement in the definition of
“Modeling Assumptions,” relating to the Offered
Certificates.
Prepayment Charges
: Any prepayment premium, fee or
charge payable by a Mortgagor in connection with any Principal
Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note or Mortgage, as applicable, as identified on the
Mortgage Loan Schedule.
Prepayment Interest
Shortfall : With respect
to any Distribution Date, for each Mortgage Loan that was the
subject of a Principal Prepayment in full (other than a Principal
Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03 or 9.01 hereof), the amount, if any,
by which (i) one month’s interest at the applicable Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
as of the preceding Distribution Date or in the case of a partial
Principal Prepayment, on the amount of such prepayment, exceeds
(ii) the amount of interest paid or collected in connection with
such Principal Prepayment.
Prepayment Period
: As to any Distribution Date, the
period beginning with the opening of business on the 1
st day of the calendar month preceding the month in
which such Distribution Date occurs (or in the case of the first
Distribution Date, beginning with the opening of business on the
Cut-off Date) and ending on the close of business on the last day
of the month in which such Distribution Date occurs.
Primary Mortgage Insurance
Policy : Any primary
mortgage guaranty insurance policy issued in connection with a
Mortgage Loan which provides compensation to a Mortgage Note holder
in the event of default by the obligor under such Mortgage Note or
the related Security Instrument, if any or any replacement policy
therefor through the related Interest Accrual Period for such Class
relating to a Distribution Date.
Principal Distribution
Amount : With respect to
each Distribution Date, the sum of (i) the Principal Funds for such
Distribution Date and (ii) any Extra Principal Distribution Amount
for such Distribution Date.
Principal Funds
: With respect to the Mortgage Loans
and any Distribution Date, the sum, without duplication, of (1) all
scheduled principal due during the related Due Period and received
before the related Servicer Remittance Date or advanced on or
before the related Servicer Remittance Date, (2) all Principal
Prepayments collected in the related Prepayment Period, (3) the
Stated Principal Balance of each Mortgage Loan that was purchased
by the Depositor or the Servicer during the related Prepayment
Period or, in the case of a purchase pursuant to Section 9.01, on
any Business Day prior to such Distribution Date, (4) the amount,
if any, by which the aggregate unpaid principal balance of any
replacement Mortgage Loan is less than the aggregate unpaid
principal balance of any Mortgage Loans delivered by the
Seller in connection with a
substitution of a Mortgage Loan pursuant to Section 2.03(c), (5)
all Liquidation Proceeds collected during the related Prepayment
Period (to the extent such Liquidation Proceeds related to
principal), (6) all Subsequent Recoveries received during the
related Due Period and (7) all other collections and recoveries in
respect of principal during the related Prepayment Period less (A)
all Non-Recoverable Advances relating to principal with respect to
the Mortgage Loans and (B) all other amounts reimbursable to the
Master Servicer, Securities Administrator, Servicer and the Trustee
pursuant to this Agreement and allocable to principal.
Principal Prepayment
: Any payment (whether partial or
full) or other recovery of principal on a Mortgage Loan which is
received in advance of its scheduled Due Date to the extent that it
is not accompanied by an amount as to interest representing
scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of
Liquidation Proceeds.
Principal Prepayment in
Full : Any Principal
Prepayment made by a Mortgagor of the entire unpaid principal
balance of the Mortgage Loan.
Principal Remittance
Amount : With respect to
each Distribution Date, the sum of the amounts listed in clauses
(1) through (7) of the definition of Principal Funds.
Prospectus Supplement
: The Prospectus Supplement dated
May 24, 2005 relating to the public offering of the Offered
Certificates.
Protected Account
: An account established and
maintained for the benefit of Certificateholders by Servicer with
respect to the Mortgage Loans and with respect to REO Property
pursuant to the Servicing Agreement. The Protected Account shall be
an Eligible Account.
PUD : A Planned Unit Development.
Purchase Price
: With respect to any Mortgage Loan
or REO Property to be purchased pursuant to or as contemplated by
Section 2.03 or 10.01, and as confirmed by an Officers’
Certificate from the Master Servicer to the Trustee, an amount
equal to the sum of (i) 100% of the Stated Principal Balance
thereof as of the date of purchase (or such other price as provided
in Section 10.01), (ii) accrued interest on such Stated Principal
Balance at the applicable Mortgage Interest Rate in effect from
time to time from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an advance by the 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.
Rating Agency
: Each of Fitch, S&P and
Moody’s. If any such organization or its successor is no
longer in existence, “Rating Agency” shall be a
nationally recognized statistical rating organization, or other
comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References herein to a
given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss
: With respect to a Liquidated
Mortgage Loan, the amount by which the remaining unpaid principal
balance of the Mortgage Loan exceeds the amount of Liquidation
Proceeds applied to the principal balance of the related Mortgage
Loan. To the extent the Master Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss with respect to that Mortgage Loan will be reduced to
the extent such recoveries are applied to reduce the Class
Certificate Balance of any Class of Certificates on any
Distribution Date.
Record Date
: With respect to any Distribution
Date, the close of business on the Business Day immediately
preceding the related Distribution Date (or, in the case of the
first Distribution Date, the Closing Date).
Reference Banks
: Barclays Bank PLC, JPMorgan Chase
Bank, N.A., Citibank, N.A., Wells Fargo Bank, N.A. and NatWest,
N.A.; provided that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by
the Trustee with the consent of the NIMs Insurer which are engaged
in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in
London, England and (ii) whose quotations appear on the Reuters
Screen LIBO Page on the relevant Interest Determination Date and
(iii) which have been designated as such by the
Servicer.
Refinanced Mortgage
Loan : A Mortgage Loan
the proceeds of which were not used to purchase the related
Mortgaged Property.
Regular Certificate
: Any one of the Class A, Class M,
and Class B Certificates.
Relief Act
: The Servicemembers Civil Relief
Act or any similar state or local law.
Relief Act Shortfall
: With respect to any Distribution
Date and any Mortgage Loan, any reduction in the amount of interest
or principal collectible on such Mortgage Loan for the most
recently ended calendar month as a result of the application of the
Relief Act.
REMIC : A “real estate mortgage investment
conduit” within the meaning of section 860D of the Code.
References herein to “the REMICs” or “a
REMIC” shall mean any of (or, as the context requires, all
of) REMIC 1 and REMIC 2.
REMIC 1 : As described in the Preliminary Statement and
Section 2.08.
REMIC 1 Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Uncertificated Principal Balance of the REMIC 1
Regular Interests then outstanding and (ii) the REMIC 1
Pass-Through Rate for REMIC 1 Regular Interest AA minus the Marker
Rate divided by (b) 12.
REMIC 1 Overcollateralized
Amount : With respect to
any date of determination, (i) 1% of the aggregate Uncertificated
Principal Balances of the REMIC 1 Regular Interests minus (ii) the
aggregate Uncertificated Principal Balances of the REMIC 1 Regular
Interests (other than REMIC 1 Regular Interests AA and ZZ), in each
case as of such date of determination.
REMIC 1 Pass-Through
Rate : With respect to
any Distribution Date, a per annum rate equal to the rate specified
in the definition of Net Rate.
REMIC 1 Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans then
outstanding and (ii) 1 minus a fraction, the numerator of which is
two times the Uncertificated Principal Balances of REMIC 1 Regular
Interests A-1, A-2, M-1, M-2, B-1, B-2, B-3, and R-2 and the
denominator of which is the sum of the Uncertificated Principal
Balances of REMIC 1 Regular Interests A-1, A-2, M-1, M-2, B-1, B-2,
B-3, R-2 and ZZ.
REMIC 1 Regular
Interests : REMIC 1
Regular Interest AA, REMIC 1 Regular Interest A-1, REMIC 1 Regular
Interest A-2, REMIC 1 Regular Interest M-1, REMIC 1 Regular
Interest M-2, REMIC 1 Regular Interest B-1, REMIC 1 Regular
Interest B-2, REMIC 1 Regular Interest B-3, REMIC 1 Regular
Interest R-2 and REMIC 1 Regular Interest ZZ.
REMIC 1 Regular Interest
AA : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
A-1 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
A-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
M-1 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
M-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-1 regular interest in
REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-2 regular interest in
REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
B-3 regular interest in
REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
R-2 : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1 Regular Interest
ZZ : A regular interest
in REMIC 1 that is held as an asset of REMIC 2, that has an initial
principal balance equal to the related Uncertificated Principal
Balance, that bears interest at the related REMIC 1 Pass-Through
Rate, and that has such other terms as are described
herein.
REMIC 1Regular Interest ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) Uncertificated Accrued Interest calculated with the
REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest ZZ and an
Uncertificated Principal Balance equal to the excess of (x) the
Uncertificated Principal Balance of REMIC 1 Regular Interest ZZ
over (y) the REMIC 1 Overcollateralized Amount, in each case for
such Distribution Date, over (ii) the sum of Uncertificated Accrued
Interest on the REMIC 1 Regular Interests (other than REMIC 1
Regular Interests AA and ZZ), with the rate on each such REMIC 1
Regular Interest subject to a cap equal to the Pass-Through Rate
for the Corresponding Class for the purpose of this
calculation.
REMIC 1 Required
Overcollateralization Amount : 1% of the required Overcollateralization
Amount.
REMIC 2 : As described in the Preliminary Statement and
Section 2.08.
REMIC Provisions
: Provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at sections 860A through 860G of Subchapter M of Chapter 1
of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property
: A Mortgaged Property acquired by
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
: The Request for Release of
Documents submitted by the Servicer to the Custodian and the
Trustee, substantially in the form of Exhibit D hereto.
Required Loss
Percentage : For any
Distribution Date, the applicable percentage for such Distribution
Date set forth in the following table:
Distribution Date Occurring
In
|
Class A-1 Required Loss
Percentage
|
|
June 2008 – May
2009
|
0.75% with respect to June 2008,
plus an additional 1/12th of 0.25% for each month
thereafter
|
|
June 2009 – May
2010
|
1.00% with respect to June 2009,
plus an additional 1/12th of 0.25% for each month
thereafter
|
|
June 2010 – May
2011
|
1.25% with respect to June 2010,
plus an additional 1/12th of 0.15% for each month
thereafter
|
|
June 2011 and thereafter
|
1.40%
|
Required Percentage
: As of any Distribution Date
following the Stepdown Date, the quotient of (1) the excess of (A)
the Stated Principal Balances of the Mortgage Loans as of such
Distribution Date, over (B) the Certificate Principal Balance of
the most senior Class of Certificates outstanding as of such
Distribution Date, prior to giving effect to distributions to be
made on such Distribution Date and (2) the Stated Principal Balance
of the Mortgage Loans as of such Distribution Date.
Reserve Interest Rate
: With respect to any Interest
Determination Date, the rate per annum that the Securities
Administrator determines to be (1) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 0.03125%) of
the one-month United States dollar lending rates which New York
City banks selected by the Securities Administrator are quoting on
the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (2) in
the event that the Securities Administrator can determine no such
arithmetic mean, the lowest one-month United States dollar lending
rate which New York City banks selected by the Securities
Administrator are quoting on such Interest Determination Date to
leading European banks.
Responsible Officer
: Any officer assigned to the
Corporate Trust Office (or any successor thereto), including any
Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any
other officer of the Trustee to whom a matter arising hereunder may
be referred.
Reuters Screen LIBO
Page : The display
designated as page “LIBO” on the Reuters Monitor Money
Rates Service (or such other page as may replace such LIBO page on
that service for the purpose of displaying London interbank offered
rates of major banks.
Rule 144A Letter
: The certificate to be furnished by
each purchaser of a Private Certificate (which is also a Physical
Certificate) which is a Qualified Institutional Buyer as defined
under Rule 144A promulgated under the Securities Act, substantially
in the form set forth as Exhibit F-3 hereto.
S&P : Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc., or any successor in
interest.
Sale Agreement or Servicing
Agreement : The Master
Mortgage Loan Purchase and Servicing Agreement dated as of April 1,
2003 between the Merrill Lynch Mortgage Holdings Inc., Terwin
Advisors LLC and GreenPoint Mortgage Funding, Inc., as amended by
Amendment No. 1, dated as of August 20, 2004 among Merrill Lynch
Mortgage Holdings, Inc., Terwin and GreenPoint Mortgage Funding,
Inc.
Scheduled Payment
: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or
interest on such Mortgage Loan.
Scheduled Principal
: The principal portion of any
Scheduled Payment.
Section 302
Requirements : Any rules
or regulations promulgated pursuant to the Sarbanes-Oxley Act of
2002 (as such may be amended from time to time).
Securities Act
: The Securities Act of 1933, as
amended.
Securities
Administrator : Wells
Fargo Bank, N.A., a national banking association, or its successor
in interest.
Security Instrument
: A written instrument creating a
valid first lien on a Mortgaged Property securing a Mortgage Note,
which may be any applicable form of mortgage, deed of trust, deed
to secure debt or security deed, including any riders or addenda
thereto.
Seller : Merrill Lynch Mortgage Lending, Inc., a
Delaware corporation, or its successors in interest.
Servicer : GreenPoint Mortgage Funding, Inc., a New York
corporation, or its successor in interest.
Servicer Remittance
Date : With respect to
any Distribution Date, the 18th day of each month, commencing on
the eighteenth day of the month next following the month in which
the related Cut-off Date occurs, or if such 18 th day is
not a Business Day, the first Business Day immediately following
such 18 th day.
Servicing Advances
: All customary, reasonable and
necessary “out-of-pocket” costs and expenses incurred
by 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, (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 April 1, 2003 among Merrill
Lynch Mortgage Holdings Inc, Terwin Advisors LLC and the Servicer,
and the modifications thereto provided in Amendment No. 1, dated as
of August 20, 2004, among Merrill Lynch Mortgage Holdings Inc.,
Terwin Advisors LLC and the Servicer.
Servicing Fee
: As to any Mortgage Loan and
Distribution Date, an amount equal to the product of (i) the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the
preceding calendar month and (ii) one-twelfth of the Servicing Fee
Rate.
Servicing Fee Rate
: 0.25% per annum.
Servicing Officer
: Any officer of the Master Servicer
involved in, or responsible for, the administration and servicing
of the Mortgage Loans whose name and specimen signature appear on a
list of servicing officers furnished to the Trustee by the Master
Servicer, as such list may be amended from time to time.
Startup Day
: May 26, 2005.
Stated Principal
Balance : With respect to
a Mortgage Loan and any Distribution Date, the amount equal to the
outstanding principal balance as of the Cut-off Date, after giving
effect to Scheduled Payments due on or before that date, reduced by
(1) the principal portion of all Scheduled Payments due on or
before the Due Date in the Due Period immediately preceding such
Distribution Date, whether or not received, and (2) all amounts
allocable to unscheduled principal payments received on or before
the last day of the Prepayment Period immediately preceding such
Distribution Date.
Stepdown Date
: The later to occur of (1) the
Distribution Date in June 2008 or (2) the first Distribution Date
on which (A) the Class A Certificate Principal Balance (reduced by
the Principal Funds with respect to such Distribution Date) is less
than or equal to (B) 81.70% of the Stated Principal Balances of the
Mortgage Loans as of such Distribution Date.
Subordinated
Certificates : Each Class
of the Class M Certificates and Class B Certificates.
Subsequent Recoveries
: Any amount recovered by a Servicer
or the Master Servicer (net of reimbursable expenses) with respect
to a Liquidated Mortgage Loan with respect to which a Realized Loss
was incurred after the liquidation or disposition of such Mortgage
Loan.
Substitute Mortgage
Loan : A mortgage loan
tendered to the Trustee pursuant to the Servicing Agreement, the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement,
as applicable, in each case, (i) which has an Outstanding Principal
Balance not greater nor materially less than the Mortgage Loan for
which it is to be substituted; (ii) which has a Mortgage Interest
Rate and Net Rate not less than, and not materially greater than,
such Mortgage Loan; (iii) which has a maturity date not materially
earlier or later than such Mortgage Loan and not later than the
latest maturity date of any Mortgage Loan; (iv) which is of the
same property type and occupancy type as such Mortgage Loan; (v)
which has a Loan-to-Value Ratio not greater than the Loan-to-Value
Ratio of such Mortgage Loan; (vi) which is current in payment of
principal and interest as of the date of substitution; (vii) as to
which the payment terms do not vary in any material respect from
the payment terms of the Mortgage Loan for which it is to be
substituted and (viii) which has a Gross Margin, Periodic Rate Cap
and Maximum Lifetime Mortgage Rate no less than those of such
Mortgage Loan, has the same Index and interval between Interest
Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime
Mortgage Rate no lower than that of such Mortgage Loan.
Tax Matters Person
: The Person designated as
“tax matters person” in the manner provided under
Treasury regulation Section 1.860F-4(d) and Treasury regulation
Section 301.6231(a)(7)-1.
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Certificate.
Transferor
: Any originator of a Mortgage
Loan.
Trigger Event
: The situation that exists with
respect to any Distribution Date on or after June 2008, if (a) the
quotient of (1) the aggregate Stated Principal Balance of all
Mortgage Loans 60 or more days delinquent, measured on a rolling
three-month basis (including Mortgage Loans in foreclosure, REO
Properties and Mortgage Loans with respect to which the applicable
mortgagor is in bankruptcy) and (2) the Stated Principal Balance of
all the Mortgage Loans as of the preceding Servicer Remittance
Date, equals or exceeds the product of (i) 31.00% and (ii) the
Required Percentage or (b) the quotient (expressed as a percentage)
of (1) the aggregate Realized Losses incurred from the Cut-off Date
through the last day of the calendar month preceding such
Distribution Date and (2) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date exceeds the Required Loss
Percentage.
Trust Fund
: The corpus of the trust (the
“Merrill Lynch Mortgage Investors Trust, Series
2005-A3”) created hereunder consisting of (i) the Mortgage
Loans and all interest and principal received on or with respect
thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of
interest not required to be deposited in the Master Servicer
Collection Account; (ii) the Master Servicer Collection Account and
the Distribution Account and all amounts deposited therein pursuant
to the applicable provisions of this
Agreement; (iii) property that
secured a Mortgage Loan and has been acquired by foreclosure, deed
in lieu of foreclosure or otherwise; (iv) the mortgagee’s
rights under the Insurance Policies with respect to the Mortgage
Loans; (v) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
property; and (vi) the Cap Contract and Cap Contract
Account.
Trustee : Wachovia Bank, National Association, or its
successor in interest, or any successor trustee appointed as herein
provided.
Uncertificated Accrued
Interest : With respect
to any REMIC 1 Regular Interest for any Distribution Date, one
month’s interest at the related REMIC 1 Pass-Through Rate for
such Distribution Date, accrued on the Uncertificated Principal
Balance immediately prior to such Distribution Date. Uncertificated
Accrued Interest for each of the REMIC 1 Regular Interests shall
accrue on the basis of a 360-day year consisting of twelve 30-day
months. For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 1 Regular Interests for any
Distribution Date, any Prepayment Interest Shortfalls for any
Distribution Date shall be allocated first, to Uncertificated
Accrued Interest payable to REMIC 1 Regular Interest AA and REMIC 1
Regular Interest ZZ up to an aggregate amount equal to the REMIC 1
Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter any remaining Prepayment Interest relating to the
Mortgage Loans for any Distribution Date shall be allocated among
the REMIC 1 Regular Interests, pro rata based on, and to the extent
of, Uncertificated Accrued Interest, as calculated without
application of this sentence.
Uncertificated Notional
Amount : With respect to
the Class C Certificates and any Distribution Date, an amount equal
to the aggregate Uncertificated Principal Balance of the REMIC 1
Regular Interests for such Distribution Date.
Uncertificated Principal
Balance : The principal
amount of any REMIC 1 Regular Interest outstanding as of any date
of determination. The Uncertificated Principal Balance of each
REMIC 1 Regular Interest shall be reduced by all distributions of
principal made on such REMIC 1 Regular Interest, as applicable, on
such Distribution Date and, if and to the extent necessary and
appropriate, shall be further reduced in such Distribution Date by
Realized Losses. The Uncertificated Principal Balance of each REMIC
1 Regular Interest shall never be less than zero.
With respect to the Class C
Certificates as of any date of determination, an amount equal to
the excess, if any, of (A) the then aggregate Uncertificated
Principal Balances of the REMIC 1 Regular Interests over (B) the
then aggregate Certificate Principal Balances of the Class A
Certificates, the Class M Certificates, the Class B Certificates
and Class R-2 Interest then outstanding.
Unpaid Realized Loss
Amount : As of any
Distribution Date, the excess of (1) the Applied Realized Loss
Amount over (2) the sum of (x) all distributions in reduction of
the Unpaid Realized Loss Amounts on all previous Distribution Dates
and (y) all increases in the Certificate Principal Balance of such
Certificates pursuant to the last sentence of the definition of
“Certificate Principal Balance.”
USAP Report
: A report in compliance with the
Uniform Single Attestation Program for Mortgage Bankers delivered
in accordance with Section 3.17.
Voting Rights
: The portion of the voting rights
of all the Certificates that is allocated to any of the
Certificates for purposes of the voting provisions hereunder.
Voting Rights allocated to each Class of Certificates shall be
allocated as follows: (1) 98% to the Class A, Class M and Class B
Certificates, with the allocation among such Certificates to be in
proportion to the Certificate Principal Balance of each Class
relative to the Certificate Principal Balance of all other Classes
and (2) each Class of the Class C Certificates and Class P
Certificates will be allocated all of the remaining voting rights.
Voting Rights will be allocated among the Certificates of each such
Class in accordance with their respective Percentage
Interests.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS;
REPRESENTATIONS AND
WARRANTIES
|
SECTION 2.01
|
Conveyance of Mortgage
Loans .
|
(a) The
Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Trust without
recourse all its right, title and interest in and to (i) the
Mortgage Loans identified in the Mortgage Loan Schedule, including
all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets as
shall from time to time be credited or are required by the terms of
this Agreement to be credited to the Master Servicer Collection
Account, (iii) such assets relating to the Mortgage Loans as from
time to time may be held by the 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 with respect to each
Mortgage 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-A3, 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-A3.
(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;
|
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) 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. The
Depositor need not cause to be recorded any assignment in any
jurisdiction under the laws of which, as evidenced by an Opinion of
Counsel delivered by the Depositor to the Trustee and the Rating
Agencies, the recordation of such assignment is not necessary to
protect the Trustee’s interest in the related Mortgage Loan;
provided, however, notwithstanding the delivery of any Opinion of
Counsel, each assignment shall be submitted for recording by the
Depositor in the manner described above, at no expense to the Trust
Fund, the Trustee or the Custodian, upon the earliest to occur of:
(i) reasonable direction by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Trust
Fund, (ii) the occurrence of an Event of Default, (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to
the Depositor, (iv) the occurrence of a servicing transfer as
described in Section 8.02 hereof and (v) with respect to any one
assignment, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Depositor fails to pay the
cost of recording the assignments, such expense will be paid by the
Trustee and the Trustee shall be reimbursed for such expenses by
the Trust Fund in accordance with Section 9.05.
If any original Mortgage Note
referred to in Section 2.01(b)(i) above cannot be located, the
obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon delivery to the Trustee of a photocopy
of such Mortgage Note, if available, with a lost note affidavit. If
any of the original Mortgage Notes for which a lost note affidavit
was delivered to the Trustee is subsequently located, such original
Mortgage Note shall be delivered to the Trustee within three
Business Days.
(c) The
parties hereto agree that it is not intended that any mortgage loan
be included in the Trust that is either (i) a “High-Cost Home
Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003, (ii) a “High-Cost Home
Loan” as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a “High Cost Home Mortgage
Loan” as defined in the Massachusetts Predatory Home Loan
Practices Act effective
November 7, 2004 or (iv) a
“High-cost Home Loan” as defined by the Indiana High
Cost Home Loan Law effective January 1, 2005.
|
SECTION 2.02
|
Acceptance of Mortgage Loans by
Trustee .
|
(a) The
Trustee acknowledges the sale, transfer and assignment of the Trust
to it by the Depositor and its receipt thereof, subject to further
review and the exceptions which may be noted pursuant to the
procedures described below, and declares that it, or the Custodian
on its behalf, holds the documents (or certified copies thereof)
delivered to it pursuant to Section 2.01, and declares that it will
continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund
delivered to it as Trustee in trust for the use and benefit of all
present and future Holders of the Certificates and the NIMs
Insurer, if any. On or before the Closing Date (or, with respect to
any Substitute Mortgage Loan, within five Business Days after the
receipt by the Trustee or Custodian thereof), the Trustee agrees,
for the benefit of the Certificateholders and the NIMs Insurer, if
any, to review or cause to be reviewed by the Custodian on its
behalf (under the Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver, or cause to be executed
and delivered, to the Depositor and the NIMs Insurer, if any, on
the Closing Date an Initial Certification. In conducting such
review, the Trustee or Custodian will certify as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in
the exception report annexed thereto as not being covered by such
certification), (i) all documents constituting part of such
Mortgage File (other than such documents described in Section
2.01(b)(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)(v), (vi), (viii) and (ix) to
the extent the Trustee or the Custodian on its behalf has actual
knowledge that such documents exist, (ii) such documents have been
reviewed by it and are not torn, mutilated, defaced or otherwise
altered (except if initialed by the obligor) and appear to relate
on their face to such Mortgage Loan, (iii) based on its examination
and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule corresponding to the loan number for the
Mortgage Loan, the Mortgagor’s name, including the street
address but excluding the zip code, the Mortgage Interest Rate and
the original principal balance of the Mortgage Loan accurately
reflects information set forth in the Mortgage File, (iv) with
respect to Mortgage Loans with a Mortgage Interest Rate subject to
adjustment, the Gross Margin and the lifetime cap for such Mortgage
Loan and (v) the Cap Contract (a form of which is attached hereto
as Exhibit L). In performing any such review, the Trustee, or the
Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported
genuineness of any signature thereon. Notwithstanding anything to
the contrary in this Agreement, it is herein acknowledged that, in
conducting such review, the Trustee or the Custodian on its behalf
is under no duty or obligation to inspect, review or examine any
such documents, instruments, certificates or other papers to
determine whether they are genuine, enforceable, or appropriate for
the represented purpose or whether they have actually been recorded
or that they are other than what they purport to be on their face,
or to determine whether any Person executing any documents is
authorized to do so or whether any signature is genuine. If the
Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or
received, or to be unrelated to the Mortgage Loans identified in
Exhibit B or to appear to be defective on its face, the Trustee or
the Custodian, as its agent, shall promptly notify the Seller and
the NIMs Insurer, if any. In accordance with the 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 and the NIMs Insurer, if any, the Mortgage Files
delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor a Final Certification. In
conducting such review, the Trustee or the Custodian, as its agent,
will certify as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage
Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), that (i) all
documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(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)(v), (vi), (viii) and (ix) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents
exist, (ii) such documents have been reviewed by it and are not
torn, mutilated, defaced or otherwise altered (except if initialed
by the obligor) and appear regular on their face and relate to such
Mortgage Loan, (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the
Mortgagor’s name, including the street address but excluding
the zip code, the Mortgage Interest Rate and the original principal
balance of the Mortgage Loan accurately reflects information set
forth in the Mortgage File. In performing any such review, the
Trustee, or the Custodian, as its agent, may conclusively rely on
the purported due execution and genuineness of any such document
and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is
herein acknowledged that, in conducting such review, the Trustee or
the Custodian on its behalf is under no duty or obligation (i) to
inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine,
enforceable, or appropriate for the represented purpose or whether
they have actually been recorded or that they are other than what
they purport to be on their face, or to determine whether any
Person executing any documents is authorized to do so or whether
any signature is genuine. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File
not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective
on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Seller and the NIMs Insurer, if any. In
accordance with the 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 or the NIMs Insurer, if any, 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 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.
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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 and the NIMs Insurer, 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, the
NIMs Insurer 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, the NIMs Insurer
or the Trustee in the related Mortgage Loan, the party discovering
the breach shall give prompt written notice of the breach to the
other parties. The Seller 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 for) any Mortgage Loan or any property acquired with
respect thereto (or pay the Purchase Price as set forth in the
above proviso) as to which a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach available
to the Certificateholders, the NIMs Insurer or the Trustee on their
behalf.
SECTION
2.04 Substitution of Mortgage
Loans . Notwithstanding anything to the contrary in this
Agreement, in lieu of purchasing a Mortgage Loan pursuant to
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 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, the NIMs Insurer, if any, and the Rating
Agencies.
Notwithstanding any other provision
of this Agreement, the right to substitute Mortgage Loans pursuant
to this Article II shall be subject to the additional limitations
that no substitution of a Mortgage Loan shall be made unless the
Master Servicer, the Trustee and the NIMs Insurer shall have
received an Opinion of Counsel (at the expense of the party seeking
to make the substitution) that, under current law, such
substitution will not (A) affect adversely the status of any REMIC
established hereunder as a REMIC, or of the related “regular
interests” as “regular interests” in any such
REMIC, or (B) cause any such REMIC to engage in a “prohibited
transaction” or prohibited contribution pursuant to the REMIC
provisions.
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SECTION 2.05
|
Issuance of
Certificates .
|
(a) The
Trustee acknowledges the assignment to it on behalf of the Trust
Fund of the Mortgage Loans and the other assets comprising the
Trust Fund and, concurrently therewith, has signed, and
countersigned and delivered to the Depositor, in exchange therefor,
Certificates in such authorized denominations representing such
Percentage Interests as the Depositor has requested. The Trustee
agrees that it will hold the Mortgage Loans and such other assets
as may from time to time be delivered to it segregated on the books
of the Trustee in trust for the benefit of the
Certificateholders.
SECTION
2.06 Representations and
Warranties Concerning the Depositor . The Depositor hereby
represents and warrants to the Trustee, the NIMs Insurer, if any,
the Master Servicer and the Securities Administrator as
follows:
(i) the
Depositor (a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the
Depositor’s business as presently conducted or on the
Depositor’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the
Depositor has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the
execution and delivery by the Depositor of this Agreement have been
duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or
its properties or the articles of incorporation or by-laws of the
Depositor, except those conflicts, breaches or defaults which would
not reasonably be expected to have a material adverse effect on the
Depositor’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the
execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action
in respect of, any state, federal or other governmental authority
or agency, except those consents, approvals, notices, registrations
or other actions as have already been obtained, given or
made;
(v) this
Agreement has been duly executed and delivered by the Depositor
and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of
the Depositor enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) there
are no actions, suits or proceedings pending or, to the knowledge
of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this
Agreement or (ii) with respect to any other matter which in the
judgment of the Depositor will be determined adversely to the
Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor’s ability to
enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any
order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement; and
(vii) immediately
prior to the transfer and assignment to the Trustee, each Mortgage
Note and each Mortgage were not subject to an assignment or pledge,
and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage
Loan to the Trustee free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest.
SECTION
2.07 Representations and
Warranties Concerning the Master Servicer . Wells Fargo Bank,
National Association, in its capacity as Master Servicer and
Securities Administrator hereby represents and warrants to the
Seller, the Depositor and the Trustee as follows, as of the Closing
Date:
(i) It
is a national banking association duly formed, validly existing and
in good standing under the laws of the United States of America and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Master
Servicer and the Securities Administrator in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such state, to
the extent necessary to ensure its ability to enforce each Mortgage
Loan, to master service the Mortgage Loans in accordance with the
terms of this Agreement and to perform any of its other obligations
under this Agreement in accordance with the terms
hereof;
(ii) It
has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all
necessary corporate action on its part the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except that
(a) the enforceability hereof may be
limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iii) The
execution and delivery of this Agreement by it, the consummation of
any other of the transactions contemplated by this Agreement, and
the fulfillment of or compliance with the terms hereof are in its
ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which it is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may
materially impair its ability to perform or meet any of its
obligations under this Agreement.
(iv) No
litigation is pending or, to the best of its knowledge, threatened,
against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its
ability to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(v) No
consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement or the
consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, it has
obtained the same.
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SECTION 2.08
|
REMIC Elections
.
|
(a) The
Depositor hereby instructs and authorizes the Trustee to make an
appropriate election to treat each of the REMIC 1 and REMIC 2 as a
REMIC. The Trustee shall sign the returns providing for such
elections and such other tax or information returns which are
required to be signed by the Trustee under applicable law. This
Agreement shall be construed so as to carry out the intention of
the parties that each of REMIC 1 and REMIC 2 be treated as a REMIC
at all times prior to the date on which the Trust Fund is
terminated.
(b) The
Preliminary Statement sets forth the designations and “latest
possible maturity date” for federal income tax purposes of
all interests created hereby. The “Startup Day” for
purposes of the REMIC Provisions shall be the Closing Date. Each
REMIC’s fiscal year shall be the calendar year.
REMIC 1 shall consist of all of the
assets of the Trust Fund, other than (i) amounts distributable to
the Class P Certificates pursuant to Section 4.04(b)(i)
hereof, (ii) the interests issued by the REMIC 1, (iii) the
grantor trusts described in Section 2.08 hereof and (iv) the Cap
Contract and the Cap Contract Account. The REMIC 1 shall issue the
REMIC 1 Regular Interests which shall be designated as regular
interests of such REMIC and shall issue the Class R-1 Interest that
shall be designated as the sole class of residual interest in REMIC
1. The REMIC 1 Regular Interest shall have the characteristics set
forth in its definition.
The assets of REMIC 2 shall be the
REMIC 1 Regular Interests. The Certificates (other than Class P
Certificates and Class R Certificates) shall be designated as the
regular interests in REMIC 2 and the Class R-2 Interest shall be
designated as the sole class of residual interest in REMIC 2. For
federal income tax purposes, the pass-through rate on each
Certificate (other than Class P Certificates and Class C
Certificates) and on the Class R-2 Interest shall be subject to a
cap equal to the Net Rate.
The beneficial ownership of the
Class R-1 Interest and the Class R-2 Interest shall be represented
by the Class R Certificate. The Class R-1 Interest shall not have a
principal balance or bear interest.
(c) The
“tax matters person” with respect to each REMIC for
purposes of the REMIC Provisions shall be the beneficial owner of
the Class R Certificate; provided, however, that the Holder of the
Class R Certificate, by its acceptance thereof, irrevocably
appoints the Trustee as its agent and attorney-in-fact to act as
“tax matters person” with respect to each REMIC for
purposes of the REMIC Provisions. If there is more than one
beneficial owner of the Class R Certificate, the “tax matters
person” shall be the Person with the greatest percentage
interest in the Class R Certificate and, if there is more than one
such Person, shall be determined under Treasury regulation Section
1.860F-4(d) and Treasury regulation Section
301.6231(a)(7)-1.
(d) It
is intended that the rights of each Class of the Class A, Class M
and Class B Certificates and the Class R-2 Interest to receive
payments in respect of Excess Interest shall be treated as a right
in interest rate cap contracts written by the Class C
Certificateholders in favor of the holders of each Class of the
Class A, Class M and Class B Certificates and the Class R-2
Interest and such shall be accounted for as property held separate
and apart from the regular interests in REMIC 2 held by the holders
of the Class A, Class M and Class B Certificates and the residual
interest in REMIC 2 held by the holder of the Class R Certificate.
For information reporting requirements, the rights of the Class A,
Class M and Class B Certificates to receive payments in respect of
Excess Interest shall be assumed to have zero or a de minimis
value. This provision is intended to satisfy the requirements of
Treasury Regulations Section 1.860G-2(i) for the treatment of
property rights coupled with REMIC interests to be separately
respected and shall be interpreted consistently with such
regulation. On each Distribution Date, to the extent that any of
the Class A, Class M and Class B Certificates receive payments in
respect of Excess Interest, such amounts, to the extent not derived
from payments on the Cap Contracts, will be treated as distributed
by REMIC 2 to the Class C Certificates pro rata in payment of the
amounts specified in Section 4.07(c)(ix) and then paid to the
relevant Class of Certificates pursuant to the related interest
rate cap agreement.
(e) The
parties intend that the portion of the Trust Fund consisting of the
right to receive amounts distributable to the Class P Certificates
pursuant to Section 4.07(a)(i) hereof shall be treated as a
“grantor trust” under the Code, for the benefit of the
holders of the Class P Certificates, and the provisions hereof
shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (i) furnish or
cause to be furnished to the holders of the Class P Certificates
information regarding their allocable share of the income with
respect to such grantor trust and (ii) file or cause to be filed
with the Internal Revenue Service Form 1041 (together with any
necessary attachments) and such other forms as may be
applicable.
(g) On
each Distribution Date, the following amounts, in the following
order of priority, shall be deemed distributed by REMIC 1 to REMIC
2 on account of the REMIC 1 Regular Interests:
(i) to
the extent of funds available in the Distribution Account, to the
Holders of the REMIC 1 Regular Interests, pro rata, in an amount
equal to (A) the related Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates. Amounts payable
as Uncertificated Accrued Interest in respect of REMIC 1 Regular
Interest ZZ shall be reduced when the REMIC 1 Overcollateralization
Amount is less than the REMIC 1 Required Overcollateralization
Amount, by the lesser of (x) the amount of such difference and (y)
the REMIC 1 Regular Interest ZZ Maximum Interest Deferral Amount,
and such amount will be payable to the Holders of REMIC 1 Regular
Interest A-1, REMIC 1 Regular Interest A-2, REMIC 1 Regular
Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular
Interest B-1, REMIC 1 Regular Interest B-2, REMIC 1 Regular
Interest B-3 and REMIC 1 Regular Interest R-2, in the same
proportion as the amount that is needed to increase
overcollateralization is allocated to the Corresponding Class for
each such REMIC 1 Regular Interest, respectively, and the
Uncertificated Principal Balance of REMIC 1 Regular Interest ZZ
shall be increased by such amount;
(ii) on
each Distribution Date, to the Holders of REMIC 1 Regular Interests
in an amount equal to the remainder of funds available in the
Distribution Account after the distributions made pursuant to
clause (i) above, allocated as follows (except as provided below):
(A) 98.00% of such remainder to the Holders of the REMIC 1 Regular
Interest AA, until the Uncertificated Principal Balance of such
REMIC 1 Regular Interest is reduced to zero; (B) 2.00% of such
remainder, first, to the Holders of the REMIC 1 Regular Interests
A-1, A-2, M-1, M-2, B-1, B-2, B-3 and R-2 in an aggregate amount
equal to 1.00% of and in the same proportion as principal payments
are allocated to the Corresponding Class for each such REMIC 1
Regular Interest, respectively, until the Uncertificated Principal
Balance of each such REMIC 1 Regular Interest is reduced to zero;
and, second, to the Holders of the REMIC 1 Regular Interest ZZ,
until the Uncertificated Principal Balance of such REMIC 1 Regular
Interest is reduced to zero; and (C) any remaining amounts to the
Holders of the Class R-1 Interest; and
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(iii)
|
any remaining amount to the Holders
of the Class R-1 Interest.
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(h) Notwithstanding
the distributions described in this Section 2.08, distribution of
funds from the Distribution Account shall be made only in
accordance with Section 4.07.
(i) In
the event that any REMIC provided for herein fails to qualify as a
REMIC, loses its status as a REMIC or incurs federal, state or
local taxes as a result of a prohibited transaction or prohibited
contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth
herein, the Servicer shall indemnify the NIMs Insurer, the Trustee
and the Trust Fund against any and all Losses resulting from such
negligence; provided, however, that the Servicer shall not be
liable for any such Losses attributable to the action or inaction
of the Trustee, the Depositor or the Holder of the residual
interest in such REMIC, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the
residual interest in such REMIC on which the Servicer has relied.
The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Holder of the residual interest in such REMIC
now or hereafter existing at law or in equity. Notwithstanding the
foregoing, however, in no event shall the Servicer have any
liability (1) for any action or omission that is taken in
accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2)
for any Losses other than those arising out of a negligent
performance by the Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and
interest on the Certificates).
(j) In
the event that any REMIC provided for herein fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or
local taxes as a result of a prohibited transaction or prohibited
contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth
herein, the Trustee shall indemnify the NIMs Insurer and the Trust
Fund against any and all Losses resulting from such negligence;
provided, however, that the Trustee shall not be liable for any
such Losses attributable to the action or inaction of the Servicer,
the Depositor, the Trustee or the Holder of the residual interest
in such REMIC, as applicable, nor for any such Losses resulting
from misinformation provided by the Holder of the residual interest
in such REMIC on which the Trustee has relied. The foregoing shall
not be deemed to limit or restrict the rights and remedies of the
Holder of the residual interest in such REMIC now or hereafter
existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Trustee have any liability (1) for
any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other
than those arising out of a negligent performance by the Trustee of
its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders (in addition
to payment of principal and interest on the
Certificates).
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; (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 if the Master Servicer
is unwilling or unable to act as a servicer, the Master Servicer or
the NIMs Insurer shall cause the Trustee to enter into a new
Servicing Agreement with a successor servicer selected by the
Master Servicer that is eligible in accordance with the criteria
specified in this Agreement and reasonably acceptable to the NIMs
Insurer; 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 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 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
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 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.
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SECTION 3.08
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Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee
.
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(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 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.
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SECTION 3.09
|
Standard Hazard Insurance and
Flood Insurance Policies .
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(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
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Maintenance of the Primary
Mortgage Insurance Policies .
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(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
