STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
TRUSTEE
WELLS FARGO BANK, NATIONAL
ASSOCIATION,MASTER
SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION
SELLER AND COMPANY
_____________________________________
POOLING AND SERVICING
AGREEMENT
Dated as of February 1,
2005
_____________________________________
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
Bear Stearns ALT-A Trust, Mortgage Pass-Through
Certificates
Series 2005-2
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
|
|
|
|
Section
2.01
|
Conveyance of
Mortgage Loans to Trustee
|
38
|
|
Section
2.02
|
Acceptance of
Mortgage Loans by Trustee
|
40
|
|
Section
2.03
|
Assignment of
Interest in the Mortgage Loan Purchase Agreement
|
42
|
|
Section
2.04
|
Substitution of
Mortgage Loans
|
43
|
|
Section
2.05
|
Issuance of
Certificates
|
44
|
|
Section
2.06
|
Representations
and Warranties Concerning the Depositor
|
44
|
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
|
|
|
|
Section
3.01
|
Master
Servicer
|
46
|
|
Section
3.02
|
REMIC-Related
Covenants
|
47
|
|
Section
3.03
|
Monitoring of
Servicers
|
47
|
|
Section
3.04
|
Fidelity
Bond
|
48
|
|
Section
3.05
|
Power to Act;
Procedures
|
48
|
|
Section
3.06
|
Due-on-Sale
Clauses; Assumption Agreements
|
49
|
|
Section
3.07
|
Release of
Mortgage Files
|
49
|
|
Section
3.08
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee
|
50
|
|
Section
3.09
|
Standard Hazard
Insurance and Flood Insurance Policies
|
51
|
|
Section
3.10
|
Presentment of
Claims and Collection of Proceeds
|
51
|
|
Section
3.11
|
Maintenance of
the Primary Mortgage Insurance Policies
|
52
|
|
Section
3.12
|
Trustee to
Retain Possession of Certain Insurance Policies and
Documents
|
52
|
|
Section
3.13
|
Realization
Upon Defaulted Mortgage Loans
|
52
|
|
Section
3.14
|
Compensation
for the Master Servicer
|
53
|
|
Section
3.15
|
REO
Property
|
53
|
|
Section
3.16
|
Annual
Officer's Certificate as to Compliance
|
54
|
|
Section
3.17
|
Annual
Independent Accountant's Servicing Report
|
54
|
|
Section
3.18
|
Reports Filed
with Securities and Exchange Commission
|
55
|
|
Section
3.19
|
The
Company
|
55
|
|
Section
3.20
|
UCC
|
55
|
|
Section
3.21
|
Optional
Purchase of Defaulted Mortgage Loans
|
56
|
ARTICLE IV
ACCOUNTS
|
|
|
|
|
Section
4.01
|
Protected
Accounts
|
57
|
|
Section
4.02
|
Master Servicer
Collection Account
|
58
|
|
Section
4.03
|
Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account
|
59
|
|
Section
4.04
|
Distribution
Account
|
60
|
|
Section
4.05
|
Permitted
Withdrawals and Transfers from the Distribution Account
|
60
|
|
Section
4.06
|
Reserve
Fund
|
60
|
|
Section
4.07
|
Class XP
Reserve Account
|
60
|
ARTICLE V
CERTIFICATES
|
|
|
|
|
Section
5.01
|
Certificates
|
63
|
|
Section
5.02
|
Registration of
Transfer and Exchange of Certificates
|
69
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
72
|
|
Section
5.04
|
Persons Deemed
Owners
|
73
|
|
Section
5.05
|
Transfer
Restrictions on Residual Certificates
|
73
|
|
Section
5.06
|
Restrictions on
Transferability of Certificates
|
74
|
|
Section
5.07
|
ERISA
Restrictions
|
75
|
|
Section
5.08
|
Rule 144A
Information
|
76
|
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
|
|
|
|
|
Section
6.01.1
|
Distributions
on the Group I Certificates
|
77
|
|
Section
6.01.2
|
Distributions
on the Group II Certificates
|
77
|
|
Section
6.02.1
|
Allocation of
Losses and Subsequent Recoveries on the Group I
Certificates
|
77
|
|
Section
6.02.2
|
Allocation of
Losses and Subsequent Recoveries on the Group II
Certificates
|
82
|
|
Section
6.02.3
|
Cross-Collateralization
|
83
|
|
Section
6.03
|
Payments
|
84
|
|
Section
6.04
|
Statements to
Certificateholders
|
85
|
|
Section
6.05
|
Monthly
Advances
|
87
|
|
Section
6.06
|
Compensating
Interest Payments
|
87
|
|
Section
6.07
|
Distributions
on REMIC I Regular Interests and REMIC II Regular
Interests
|
88
|
ARTICLE VII
THE MASTER SERVICER
|
|
|
|
|
Section
7.01
|
Liabilities of
the Master Servicer
|
89
|
|
Section
7.02
|
Merger or
Consolidation of the Master Servicer
|
89
|
|
Section
7.03
|
Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator
|
89
|
|
Section
7.04
|
Limitations on
Liability of the Master Servicer and Others
|
90
|
|
Section
7.05
|
Master Servicer
Not to Resign
|
91
|
|
Section
7.06
|
Successor
Master Servicer
|
91
|
|
Section
7.07
|
Sale and
Assignment of Master Servicing
|
91
|
ARTICLE VIII
DEFAULT
|
|
|
|
|
Section
8.01
|
Events of
Default
|
93
|
|
Section
8.02
|
Trustee to Act;
Appointment of Successor
|
94
|
|
Section
8.03
|
Notification to
Certificateholders
|
95
|
|
Section
8.04
|
Waiver of
Defaults
|
95
|
|
Section
8.05
|
List of
Certificateholders
|
96
|
ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
|
|
|
|
Section
9.01
|
Duties of
Trustee
|
97
|
|
Section
9.02
|
Certain Matters
Affecting the Trustee and the Securities Administrator
|
99
|
|
Section
9.03
|
Trustee and
Securities Administrator Not Liable for Certificates or Mortgage
Loans
|
100
|
|
Section
9.04
|
Trustee and
Securities Administrator May Own Certificates
|
101
|
|
Section
9.05
|
Trustee's and
Securities Administrator's Fees and Expenses
|
101
|
|
Section
9.06
|
Eligibility
Requirements for Trustee and Securities Administrator
|
101
|
|
Section
9.07
|
Insurance
|
102
|
|
Section
9.08
|
Resignation and
Removal of the Trustee and Securities Administrator
|
102
|
|
Section
9.09
|
Successor
Trustee and Successor Securities Administrator
|
103
|
|
Section
9.10
|
Merger or
Consolidation of Trustee or Securities Administrator
|
104
|
|
Section
9.11
|
Appointment of
Co-Trustee or Separate Trustee
|
104
|
|
Section
9.12
|
Federal
Information Returns and Reports to Certificateholders; REMIC
Administration
|
105
|
ARTICLE X
TERMINATION
|
|
|
|
|
Section
10.01
|
Termination
Upon Repurchase by EMC or its Designee or Liquidation of the
Mortgage Loans
|
108
|
|
Section
10.02
|
Additional
Termination Requirements
|
110
|
ARTICLE XI
MISCELLANEOUS PROVISIONS
|
|
|
|
|
Section
11.01
|
Intent of
Parties
|
112
|
|
Section
11.02
|
Amendment
|
112
|
|
Section
11.03
|
Recordation of
Agreement
|
113
|
|
Section
11.04
|
Limitation on
Rights of Certificateholders
|
113
|
|
Section
11.05
|
Acts of
Certificateholders
|
114
|
|
Section
11.06
|
Governing
Law
|
115
|
|
Section
11.07
|
Notices
|
115
|
|
Section
11.08
|
Severability of
Provisions
|
116
|
|
Section
11.09
|
Successors and
Assigns
|
116
|
|
Section
11.10
|
Article and
Section Headings
|
116
|
|
Section
11.11
|
Counterparts
|
116
|
|
Section
11.12
|
Notice to
Rating Agencies
|
116
|
APPENDIX
|
|
|
|
Appendix
1
|
Calculation of
Class Y Principal Reduction Amount
|
EXHIBITS
|
|
|
|
Exhibit
A-1
|
Form of Class
I-A-1 Certificates
|
|
Exhibit
A-2
|
Form of Class
I-M-1 and Class I-M-2 Certificates
|
|
Exhibit
A-3
|
Form of Class
I-B-1, Class I-B-2 and Class I-B-3 Certificates
|
|
Exhibit
A-4-1
|
Form of Class R
Certificates
|
|
Exhibit
A-4-2
|
Form of Class
R-X Certificates
|
|
Exhibit
A-5
|
Form of Class
B-IO Certificates
|
|
Exhibit
A-6
|
Form of Class
XP Certificates
|
|
Exhibit
A-7
|
Form of Class
II-A Certificates
|
|
Exhibit
A-8
|
Form of Class
II-B-1, Class II-B-2, Class II-B-3, Class II-B-4 and Class II-B-5
Certificates
|
|
Exhibit
A-9
|
Form of Class
II-B-6, Class II-B-7 and Class II-B-8 Certificates
|
|
Exhibit
B
|
Mortgage Loan
Schedule
|
|
Exhibit
C
|
[Reserved]
|
|
Exhibit
D
|
Request for
Release of Documents
|
|
Exhibit
E
|
Form of
Affidavit pursuant to Section 860E(e)(4)
|
|
Exhibit
F-1
|
Form of
Investment Letter
|
|
Exhibit
F-2
|
Form of Rule
144A and Related Matters Certificate
|
|
Exhibit
F-3
|
Form of
Transferor Representation Letter
|
|
Exhibit
G
|
Form of
Custodial Agreement
|
|
Exhibit
H-1
|
Bank of America
Servicing Agreement
|
|
Exhibit
H-2
|
Cendant
Servicing Agreement
|
|
Exhibit
H-3
|
Countrywide
Servicing Agreement
|
|
Exhibit
H-4
|
EMC Servicing
Agreement
|
|
Exhibit
H-5
|
EverHome
Servicing Agreement
|
|
Exhibit
H-6
|
GMACM Servicing
Agreement
|
|
Exhibit
H-7
|
GreenPoint
Servicing Agreement
|
|
Exhibit
H-8
|
HomeBanc
Servicing Agreement
|
|
Exhibit
H-9
|
Waterfield
Servicing Agreement
|
|
Exhibit
H-10
|
Wells Fargo
Servicing Agreement
|
|
Exhibit
I
|
Assignment
Agreements
|
|
Exhibit
J
|
Mortgage Loan
Purchase Agreement
|
|
Exhibit
K
|
Form of Trustee
Limited Power of Attorney
|
POOLING AND SERVICING
AGREEMENT
Pooling
and Servicing Agreement dated as of February 1, 2005, among
Structured Asset Mortgage Investments II Inc., a Delaware
corporation, as depositor (the “Depositor”), JPMorgan
Chase Bank, National Association, a banking association organized
under the laws of the United States, not in its individual capacity
but solely as trustee (the “Trustee”), Wells Fargo
Bank, National Association, as master servicer (in such capacity,
the “Master Servicer”) and as securities administrator
(in such capacity, the “Securities Administrator”), and
EMC Mortgage Corporation, as seller (in such capacity, the
“Seller”) and as company (in such capacity, the
“Company”).
PRELIMINARY STATEMENT
On
or prior to the Closing Date, the Depositor acquired the Mortgage
Loans from the Seller. On the Closing Date, the Depositor will sell
the Mortgage Loans and certain other property to the Trust Fund and
receive in consideration therefor Certificates evidencing the
entire beneficial ownership interest in the Trust Fund.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax
purposes as a REMIC. On the Startup Day, the REMIC I Regular
Interests will be designated “regular interests” in
such REMIC.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax
purposes as a REMIC. On the Startup Day, the REMIC II Regular
Interests will be designated “regular interests” in
such REMIC.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC III to be treated for federal income tax
purposes as a REMIC. On the Startup Day, the REMIC III Regular
Interests will be designated “regular interests” in
such REMIC.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC IV to be treated for federal income tax
purposes as a REMIC. On the Startup Day, the REMIC IV Regular
Interests will be designated “regular interests” in
such REMIC.
The
Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC V to be treated for federal income tax
purposes as a REMIC. On the Startup Day, the REMIC V Regular
Interest will be designated the “regular interest” in
such REMIC.
The
Class R Certificates will evidence ownership of the
“residual interest” in each of REMIC I, REMIC II, REMIC
III and REMIC IV. The Class R-X Certificates will evidence
ownership of the “residual interest” in REMIC
V.
The
Group I Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or
before the Cut-off Date, of $528,676,117. The Group II-1 Loans will
have an Outstanding Principal Balance as of the Cut-off Date, after
deducting all Scheduled Principal due on or before the Cut-off
Date, of $184,596,437. The Group II-2 Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after
deducting all Scheduled Principal due on or before the Cut-off
Date, of $31,163,116. The Group II-3 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of
$496,056,112. The Group II-4 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of
$247,138,687. The Group II-5 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of
$67,098,751. The Group II-6 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of
$154,453,895.
In
consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the
Seller, the Company and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever
used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise
requires, shall have the meanings specified in this
Article.
Accepted Master Servicing Practices : With respect to any
Mortgage Loan, as applicable, either (x) those customary mortgage
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 any Servicer, but in no event below the
standard set forth in clause (x).
Account : The Master Servicer Collection Account, the
Distribution Account, the Protected Account, the Cap Reserve
Account or the Class XP Reserve Account, as the context may
require.
Accrued Certificate Interest : For any Group II Certificate
for any Distribution Date, the interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the
Certificate Principal Balance or Notional Balance, as applicable,
of such Group II Certificate immediately prior to such Distribution
Date, on the basis of a 360-day year consisting of twelve 30-day
months, less (i) in the case of a Group II Senior Certificate,
such Group II Certificate’s share of any Net Interest
Shortfall from the related Mortgage Loans and, after the Cross-Over
Date, the interest portion of any Realized Losses on the related
Mortgage Loans, in each case allocated thereto in accordance with
Section 6.02.2(g) and (ii) in the case of a Group II
Subordinate Certificate, such Certificate’s share of any Net
Interest Shortfall from the related Mortgage Loans and the interest
portion of any Realized Losses on the related Mortgage Loans, in
each case allocated thereto in accordance with
Section 6.02.2(g).
Affiliate : As to any Person, any other Person controlling,
controlled by or under common control with such Person.
“Control” means the power to direct the management and
policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise.
“Controlled” and “Controlling” have
meanings correlative to the foregoing. The Trustee may conclusively
presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the
contrary.
Aggregate Subordinate Optimal Principal Amount : With
respect to any Distribution Date, the sum of the Subordinate
Optimal Principal Amounts for all Loan Groups in Loan Group II for
such Distribution Date.
Agreement: This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
Allocable Share : With respect to any Class of Group II
Subordinate Certificates and any Distribution Date, an amount equal
to the product of (i) the Aggregate Subordinate Optimal Principal
Amount and (ii) the fraction, the numerator of which is the
Certificate Principal Balance of such Class and the denominator of
which is the aggregate Certificate Principal Balance of all Classes
of the Group II Subordinate Certificates; provided, however, that
no Class of Group II Subordinate Certificates (other than the
outstanding Class of Group II Subordinate Certificates with the
lowest numerical designation) shall be entitled on any Distribution
Date to receive distributions pursuant to clauses (ii),
(iii) and (v) of the definition of Subordinate Optimal
Principal Amount unless the related Class Prepayment
Distribution Trigger for such Distribution Date has been satisfied
(any amount distributable pursuant to clauses (ii), (iii) and
(v) of the definition of Subordinate Optimal Principal Amount shall
be distributed among the Classes entitled thereto, pro rata based
on their respective Certificate Principal Balances); provided,
further, that if on a Distribution Date, the Certificate Principal
Balance of any Class of Group II Subordinate Certificates for
which the related Class Prepayment Distribution Trigger has
been satisfied is reduced to zero, such Class’s remaining
Allocable Share shall be distributed to the remaining Classes of
Group II Subordinate Certificates sequentially beginning with the
Class with the lowest numerical designation in reduction of their
respective Certificate Principal Balances.
Applicable Credit Rating : For any long-term deposit or
security, a credit rating of AAA in the case of S&P or Aaa in
the case of Moody’s (or with respect to investments in money
market funds, a credit rating of “AAAm” or
“AAAm-G” in the case of S&P and the highest rating
given by Moody’s for money market funds in the case of
Moody’s). For any short-term deposit or security, or a rating
of A-l+ in the case of S&P or Prime-1 in the case of
Moody’s.
Applicable State Law : For purposes of Section 9.12(d),
the Applicable State Law shall be (a) the law of the State of New
York and (b) such other state law whose applicability shall have
been brought to the attention of the Securities Administrator and
the Trustee by either (i) an Opinion of Counsel reasonably
acceptable to the Securities Administrator and the Trustee
delivered to it by the Master Servicer or the Depositor, or
(ii) written notice from the appropriate taxing authority as
to the applicability of such state law.
Applied Realized Loss Amount : With respect to any
Distribution Date and a Class of Group I Offered Certificates, the
sum of the Realized Losses with respect to the Group I Mortgage
Loans, which are to be applied in reduction of the Certificate
Principal Balance of such Class of Group I Offered Certificates
pursuant to this Agreement in an amount equal to the amount, if
any, by which, (i) the aggregate Certificate Principal Balance of
all of the Group I Certificates (after all distributions of
principal on such Distribution Date) exceeds (ii) the aggregate
Stated Principal Balance of all of the Group I Mortgage Loans for
such Distribution Date. The Applied Realized Loss Amount shall be
allocated first to the Class I-B-3 Certificates, the Class I-B-2
Certificates, the Class I-B-1 Certificates, the Class I-M-2
Certificates and the Class I-M-1 Certificates, in that order (so
long as their respective Certificate Principal Balances have not
been reduced to zero), and thereafter the Applied Realized Loss
Amount with respect to the Group I Mortgage Loans shall be
allocated to the Class I-A-1 Certificates, until the Certificate
Principal Balance of each Class has been reduced to
zero.
Appraised Value : For any Mortgaged Property related to a
Mortgage Loan, the amount set forth as the appraised value of such
Mortgaged Property in an appraisal made for the mortgage originator
in connection with its origination of the related Mortgage
Loan.
Assignment Agreements : The agreements attached hereto as
Exhibit I, whereby the Servicing Agreements were assigned to
the Trustee for the benefit of the Certificateholders.
Assumed Final Distribution Date : With respect to the Group
I Certificates, March 25, 2035, and with respect to the Group II
Certificates, April 25, 2035, or, in each case, if such day is
not a Business Day, the next succeeding Business Day.
Available Funds : With respect to any Distribution Date and
each Loan Group in Loan Group II, an amount equal to the aggregate
of the following amounts with respect to the Mortgage Loans in the
related Loan Group: (a) all previously undistributed payments on
account of principal (including the principal portion of Scheduled
Payments, Principal Prepayments and the principal portion of Net
Liquidation Proceeds) and all previously undistributed payments on
account of interest received after the Cut-off Date and on or prior
to the related Determination Date, (b) any Monthly Advances and
Compensating Interest Payments by the Servicer or the Master
Servicer with respect to such Distribution Date, (c) any reimbursed
amount in connection with losses on investments of deposits in
certain eligible investments in respect of the Mortgage Loans in
the related Loan Group and (d) any amount allocated from the
Available Funds of another Loan Group in accordance with Section
6.01.2(a)(H) under, except:
|
|
(i)
|
all payments that were due on or before the Cut-off
Date;
|
|
|
(ii)
|
all Principal Prepayments and Liquidation Proceeds received after
the applicable Prepayment Period;
|
|
|
(iii)
|
all payments, other than Principal Prepayments, that represent
early receipt of Scheduled Payments due on a date or dates
subsequent to the related Due Date;
|
|
|
(iv)
|
amounts received on particular Mortgage Loans as late payments of
principal or interest and respecting which, and to the extent that,
there are any unreimbursed Monthly Advances;
|
|
|
(v)
|
amounts representing Monthly Advances determined to be
Nonrecoverable Advances;
|
|
|
(vi)
|
any investment earnings on amounts on deposit in the Master
Servicer Collection Account and the Distribution Account and
amounts permitted to be withdrawn from the Master Servicer
Collection Account and the Distribution Account pursuant to this
Agreement;
|
|
|
(vii)
|
amounts needed to pay the Servicing Fees or to reimburse any
Servicer or the Master Servicer for amounts due under the Servicing
Agreement and the Agreement to the extent such amounts have not
been retained by, or paid previously to, such Servicer or the
Master Servicer;
|
|
|
(viii)
|
amounts applied to pay any fees with respect to any lender-paid
primary mortgage insurance policy; and
|
|
|
(ix)
|
any expenses or other amounts reimbursable to the Trustee, the
Securities Administrator, the Master Servicer and the Custodian
pursuant to Section 7.04(c) or Section 9.05.
|
Average Loss Severity Percentage : With respect to any
Distribution Date and each Loan Group in Loan Group II, the
percentage equivalent of a fraction, the numerator of which is the
sum of the Loss Severity Percentages for each Mortgage Loan in such
Loan Group which had a Realized Loss and the denominator of
which is the number of Mortgage Loans in the related Loan
Group which had Realized Losses.
Bank of America : Bank of America, National Association, and
its successor in interest.
Bank of America Servicing Agreement : The Flow Mortgage Loan
Sale and Servicing Agreement, dated March 1, 2003, as amended by
Amendment No. 2 to Flow Mortgage Loan Sale and Servicing Agreement,
dated August 25, 2004, between Bank of America and EMC attached
hereto as Exhibit H-1.
Bankruptcy Code: The United States Bankruptcy
Code, as amended as codified in 11 U.S.C.ss.ss. 101-1330.
Bankruptcy Loss : With respect to any Mortgage Loan, any
Deficient Valuation or Debt Service Reduction related to such
Mortgage Loan as reported by the Servicer to the Master
Servicer.
Basis Risk Shortfall : With respect to any Distribution Date
and each Class of Group I Offered Certificates for which the
Pass-Through Rate is based upon the applicable Net Rate Cap, the
excess, if any, of (a) the amount of Current Interest that such
Class would have been entitled to receive on such Distribution Date
had the applicable Pass-Though Rate been calculated at a per annum
rate equal to the lesser of (i) One-Month LIBOR plus the related
Margin and (ii) 11.50% over (b) the amount of Current Interest on
such Class of Offered Certificates calculated using a Pass-Though
Rate equal to the applicable Net Rate Cap for such Distribution
Date.
Basis Risk Shortfall Carry Forward Amount : With respect to
any Distribution Date and each Class of Group I Offered
Certificates, Basis Risk Shortfalls for all previous Distribution
Dates not previously paid from any source including the Excess
Cashflow and payments under the Cap Contracts, together with
interest thereon at a rate equal to the related Pass-Through Rate
for such Class of Offered Certificates for such Distribution
Date.
Book-Entry Certificates : Initially, the Senior Certificates
and Offered Subordinate Certificates.
Business Day : Any day other than (i) a Saturday or a
Sunday, or (ii) a day on which the New York Stock Exchange or
Federal Reserve is closed or on which banking institutions in the
jurisdiction in which the Trustee, the Master Servicer, Custodian,
any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Cap Contract : With respect to any of the Class I-A-1, Class
I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 Certificates or Class
I-B-3 Certificates, the respective cap contracts, dated February
28, 2005, between the Trustee, on behalf of the Class I-A-1, Class
I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 or Class I-B-3
Certificateholders, as the case may be, and the
Counterparty.
Cap Contract Payment Amount : With respect to any
Distribution Date and a Cap Contract, the amounts received from
such Cap Contract, if any, on such Distribution Date.
Cap Reserve Account : The trust account or accounts created
and maintained pursuant to Section 4.08 hereof, which shall be
denominated “JPMorgan Chase Bank, National Association, as
Trustee f/b/o holders of Structured Asset Mortgage Investments II
Inc., Bear Stearns ALT-A Trust 2005-2, Mortgage Pass-Through
Certificates, Series 2005-2 – Cap Reserve Account.” For
purposes of the REMIC Provisions, the Cap Reserve Account will be
an outside reserve fund. For federal income tax purposes, the Class
B-IO Certificateholder shall be treated as the owner of the Cap
Reserve Account and shall include any investment earnings on the
Cap Reserve Account in income for such purposes. Any amounts
distributed to the Cap Reserve Account from any REMIC created
hereunder shall be treated as having been distributed to the Class
B-IO Certificateholder from such REMIC.
Cendant : Cendant Mortgage Corporation, and any successor
thereto.
Cendant Servicing Agreement : The Purchase, Warranties and
Servicing Agreement dated as of October 23, 2001, among Cendant,
Bishop’s Gate Residential Mortgage Trust and EMC attached
hereto as Exhibit H-2.
Certificate : Any mortgage pass-through certificate
evidencing a beneficial ownership interest in the Trust Fund signed
and countersigned by the Trustee in substantially the forms annexed
hereto as Exhibits A-1, A-2, A-3, A-4-1, A-4-2, A-5, A-6, A-7, A-8
and A-9 with the blanks therein appropriately completed.
Certificate Group : With respect to Loan Group II-1, the
Class II-A-1 Certificates, with respect to Loan Group II-2, the
Class II-A-2a Certificates and the Class II-A-2b Certificates, with
respect to Loan Group II-3, the Class II-A-3 Certificates, with
respect to Loan Group II-4, the Class II-A-4 Certificates and the
Class II-X-4 Certificates, with respect to Loan Group II-5, the
Class II-A-5 Certificates and the Class II-X-5 Certificates, and
with respect to Loan Group II-6, the Class II-A-6
Certificates.
Certificate Owner : Any Person who is the beneficial owner
of a Certificate registered in the name of the Depository or its
nominee.
Certificate Principal Balance : With respect to any
Certificate (other than the Class B-IO, Class R or Class R-X
Certificates) as of any Distribution Date, the initial principal
amount of such Certificate plus, in the case of a Subordinate
Certificates, any Subsequent Recoveries added to the Certificate
Principal Balance of such Certificates pursuant to Section
6.02.1(b) or Section 6.02.2(h) hereof, and reduced by (i) all
amounts distributed on previous Distribution Dates on such
Certificate with respect to principal, (ii) solely in the case
of the Group II Certificates, the principal portion of all Realized
Losses (other than Realized Losses resulting from Debt Service
Reductions) allocated prior to such Distribution Date to such
Certificate, taking account of the applicable Loss Allocation
Limitation, (iii) solely in the case of the Group I Certificates,
any Applied Realized Loss Amounts allocated to such Class on
previous Distribution Dates, and (iv) in the case of a Group
II Subordinate Certificate, such Certificate’s pro rata
share, if any, of the applicable Subordinate Certificate Writedown
Amount for previous Distribution Dates. With respect to any
Class of Certificates, the Certificate Principal Balance
thereof will equal the sum of the Certificate Principal Balances of
all Certificates in such Class. The initial Certificate Principal
Balance (if any) for each Class of Certificates is set forth in
Section 5.01(c)(iv).
Certificate Register : The register maintained pursuant to
Section 5.02.
Certificateholder : A Holder of a Certificate.
Class : With respect to the Certificates, any of Class
I-A-1, Class II-A-1, Class II-A-2a, Class II-A-2b, Class II-A-3,
Class II-A-4, Class II-X-4, Class II-A-5, Class II-X-5, Class
II-A-6, Class I-M-1, Class I-M-2, Class R, Class R-X, Class I-B-1,
Class I-B-2, Class I-B-3, Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4, Class II-B-5, Class II-B-6, Class II-B-7, Class
II-B-8, Class B-IO and Class XP Certificates.
Class A Certificates : The Class I-A-1 Certificates and the
Class II-A Certificates.
Class B Certificates : The Class I-B Certificates and the
Class II-B Certificates.
Class B-IO Advances : As defined in Section
6.01.1(b).
Class B-IO Distribution Amount : With respect to any
Distribution Date, the Current Interest for the Class B-IO
Certificates for such Distribution Date (which shall be deemed
distributable with respect to the REMIC IV Regular Interest
B-IO-I); provided, however, that on and after the Distribution Date
on which the aggregate Certificate Principal Balance of the Group I
Certificates has been reduced to zero, the Class B-IO Distribution
Amount shall include the Overcollateralization Amount (which shall
be deemed distributable, first, with respect to the REMIC IV
Regular Interest B-IO-I in respect of accrued and unpaid interest
thereon until such accrued and unpaid interest shall have been
reduced to zero and, thereafter, with respect to the REMIC IV
Regular Interest B-IO-P in respect of the principal balance
thereof).
Class B-IO Pass-Through Rate : With respect to the Class
B-IO Certificates and any Distribution Date or the REMIC IV
Regular Interest B-IO-I, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the
amounts calculated pursuant to clauses (i) through (iii) below, and
the denominator of which is the aggregate principal balance of the
REMIC II Regular Interests. For purposes of calculating the
Pass-Through Rate for the Class B-IO-I Certificates, the numerator
is equal to the sum of the following components:
|
|
1.
|
the
Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT1 minus the Marker Rate, applied to a notional amount equal to
the Uncertificated Principal Balance of REMIC I Regular
Interest LT1;
|
|
|
2.
|
the
Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT2 minus the Marker Rate, applied to a notional amount equal to
the Uncertificated Principal Balance of REMIC II Regular
Interest LT2; and
|
|
|
3.
|
the
Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT4 minus twice the Marker Rate, applied to a notional amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LT4.
|
Class I-A-1 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-A-1 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the product of (1) the
aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date and (2) the sum of (x) 14.60% and (y)
the Current Specified Overcollateralization Percentage for such
Distribution Date.
Class I-B Certificates : The Class I-B-1, the Class I-B-2
and the Class I-B-3 Certificates.
Class I-B-1 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-B-1 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the sum of (1) the
Certificate Principal Balance of the Class I-A-1 Certificates
(after taking into account the payment of the Class I-A-1 Principal
Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking
into account the payment of the Class I-M-1 Principal Distribution
Amount on such Distribution Date), (3) the Certificate Principal
Balance of the Class I-M-2 Certificates (after taking into account
the payment of the Class I-M-2 Principal Distribution Amount on
such Distribution Date) and (4) the product of (x) the aggregate
Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (y) the sum of 3.20% and the Current
Specified Overcollateralization Percentage for such Distribution
Date.
Class I-B-2 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-B-2 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the sum of (1) the
Certificate Principal Balance of the Class I-A-1 Certificates
(after taking into account the payment of the Class I-A-1 Principal
Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking
into account the payment of the Class I-M-1 Principal Distribution
Amount on such Distribution Date), (3) the Certificate Principal
Balance of the Class I-M-2 Certificates (after taking into account
the payment of the Class I-M-2 Principal Distribution Amount on
such Distribution Date), (4) the Certificate Principal Balance of
the Class I-B-1 Certificates (after taking into account the payment
of the Class I-B-1 Principal Distribution Amount on such
Distribution Date), and (5) the product of (x) the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (y) the sum of 1.60% and the Current
Specified Overcollateralization Percentage for such Distribution
Date.
Class I-B-3 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-B-3 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the sum of (1) the
Certificate Principal Balance of the Class I-A-1 Certificates
(after taking into account the payment of the Class I-A-1 Principal
Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking
into account the payment of the Class I-M-1 Principal Distribution
Amount on such Distribution Date), (3) the Certificate Principal
Balance of the Class I-M-2 Certificates (after taking into account
the payment of the Class I-M-2 Principal Distribution Amount on
such Distribution Date), (4) the Certificate Principal Balance of
the Class I-B-1 Certificates (after taking into account the payment
of the Class I-B-1 Principal Distribution Amount on such
Distribution Date), (5) the Certificate Principal Balance of the
Class I-B-2 Certificates (after taking into account the payment of
the Class I-B-2 Principal Distribution Amount on such Distribution
Date), and (6) the product of (x) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date
and (y) the Current Specified Overcollateralization Percentage for
such Distribution Date.
Class I-M-1 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-M-1 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the sum of (1) the
Certificate Principal Balance of the Class I-A-1 Certificates
(after taking into account the payment of the Class I-A-1 Principal
Distribution Amount on such Distribution Date) and (2) the product
of (x) the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date and (y) the sum of (I)
9.00% and (II) the Current Specified Overcollateralization
Percentage for such Distribution Date.
Class I-M-2 Principal Distribution Amount : For any
Distribution Date, an amount equal to the excess, if any, of (i)
the Certificate Principal Balance of the Class I-M-2 Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date over (b) the sum of (1) the
Certificate Principal Balance of the Class I-A-1 Certificates
(after taking into account the payment of the Class I-A-1 Principal
Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking
into account the payment of the Class I-M-1 Principal Distribution
Amount on such Distribution Date) and (3) the product of (x) the
aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date and (y) the sum of (I) 5.00% and (II)
the Current Specified Overcollateralization Percentage for such
Distribution Date.
Class II-A Certificates : The Class II-A-1, Class II-A-2a,
Class II-A-2b, Class II-A-3, Class II-A-4, Class II-X-4, Class
II-A-5, Class II-X-5 and Class II-A-6 Certificates.
Class II-B Certificates : The Class II-B-1, Class II-B-2,
Class II-B-3, Class II-B-4, Class II-B-5, Class II-B-6, Class
II-B-7 and Class II-B-8 Certificates.
Class M Certificates: The Class I-M-1 Certificates and the
Class I-M-2 Certificates.
Class Prepayment Distribution Trigger : For a
Class of Group II Subordinate Certificates for any
Distribution Date, the Class Prepayment Distribution Trigger
is satisfied if the fraction (expressed as a percentage), the
numerator of which is the aggregate Certificate Principal Balance
of such Class and each Class of Group II Subordinate
Certificates subordinate thereto, if any, and the denominator of
which is the Stated Principal Balance of all of the Group II
Mortgage Loans as of the related Due Date, equals or exceeds such
percentage calculated as of the Closing Date.
Class R Certificate : Any of the Class R
Certificates substantially in the form annexed hereto as Exhibit
A-4-1 and evidencing ownership of interests designated as
“residual interests” in REMIC I, REMIC II,
REMIC III and REMIC IV for purposes of the REMIC Provisions.
Component I of the Class R Certificates is designated as the
sole class of “residual interest” in REMIC I,
Component II of the Class R Certificates is designated as the
sole class of “residual interest” in REMIC II,
Component III of the Class R Certificates is designated as the
sole class of “residual interest” in REMIC III and
Component IV of the Class R Certificates is designated as the
sole class of “residual interest” in
REMIC IV.
Class R-X Certificates : Any of the Class R-X
Certificates substantially in the form annexed hereto as Exhibit
A-4-2 and evidencing ownership of the “residual
interest” in REMIC V for purposes of the REMIC
Provisions.
Class XP Reserve Account : The account established and
maintained by the Master Servicer pursuant to Section 4.07
hereof.
Class Y Principal Reduction Amounts : For any Distribution
Date, the amounts by which the Uncertificated Principal Balances of
the Class Y Regular Interests will be reduced on such Distribution
Date by the allocation of Realized Losses and the distribution of
principal, determined as described in Appendix I
Class Y Regular Interests : The Class Y-1, Class Y-2, Class
Y-3, Class Y-4, Class Y-5 and Class Y-6 Regular
Interests.
Class Y-1 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Y-1 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-1 Regular
Interest on such Distribution Date.
Class Y-1 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-1 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-1 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Y-2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the Class Y-2 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-2 Regular
Interest on such Distribution Date.
Class Y-2 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-2 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-2 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Y-3 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Y-3 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-3 Regular
Interest on such Distribution Date.
Class Y-3 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-3 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-3 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Y-4 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Y-4 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-1 Regular
Interest on such Distribution Date.
Class Y-4 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-4 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-4 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Y-5 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Y-5 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-5 Regular
Interest on such Distribution Date.
Class Y-5 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-1 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-5 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Y-6 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Y-6 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Y-6 Regular
Interest on such Distribution Date.
Class Y-6 Principal Reduction Amount : The Class Y Principal
Reduction Amount for the Class Y-1 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Y-6 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z Principal Reduction Amounts : For any Distribution
Date, the amounts by which the Uncertificated Principal Balances of
the Class Z Regular Interests will be reduced on such Distribution
Date by the allocation of Realized Losses and the distribution of
principal, which shall be in each case the excess of (A) the sum of
(x) the excess of the REMIC I Available Distribution Amount
for the related Group (i.e. the “related Group” for the
Class Z-1 Regular Interest is the Group II-1 Loans, the
“related Group” for the Class Z-2 Regular Interest is
the Group II-2 Loans, the “related Group” for the Class
Z-3 Regular Interest is the Group II-3 Loans, the “related
Group” for the Class Z-4 Regular Interest is the Group II-4
Loans, the “related Group” for the Class Z-5 Regular
Interest is the Group II-5 Loans, the “related Group”
for the Class Z-6 Regular Interest is the Group II-6 Loans) over
the sum of the amounts thereof distributable (i) in respect of
interest on such Class Z Regular Interest and the related Class Y
Regular Interest, (ii) to such Class Z Regular Interest and the
related Class Y Regular Interest pursuant to clause (c)(ii) of the
definition of “REMIC I Distribution Amount” and
(iii) in the case of the Group I Loans, to the Class R Certificates
and (y) the amount of Realized Losses allocable to principal for
the related Group over (B) the Class Y Principal Reduction Amount
for the related Group.
Class Z Regular Interests : The Class Z-1, Class Z-2, Class
Z-3, Class Z-4, Class Z-5 and Class Z-6 Regular
Interests.
Class Z-1 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-1 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-1 Regular
Interest on such Distribution Date.
Class Z-1 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-1 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-1 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z-2 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-2 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-2 Regular
Interest on such Distribution Date.
Class Z-2 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-2 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-2 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z-3 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-3 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-3 Regular
Interest on such Distribution Date .
Class Z-3 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-3 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-3 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z-4 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-4 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-4 Regular
Interest on such Distribution Date.
Class Z-4 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-4 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-4 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z-5 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-5 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-5 Regular
Interest on such Distribution Date.
Class Z-5 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-5 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-5 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Class Z-6 Principal Distribution Amount : For any
Distribution Date, the excess, if any, of the Class Z-6 Principal
Reduction Amount for such Distribution Date over the principal
portion of Realized Losses allocated to the Class Z-6 Regular
Interest on such Distribution Date.
Class Z-6 Principal Reduction Amount : The Class Z Principal
Reduction Amount for the Class Z-6 Regular Interest as determined
pursuant to the provisons of the Appendix 1.
Class Z-6 Regular Interest : The uncertificated undivided
beneficial interest in REMIC I which constitutes a
REMIC I Regular Interest and is entitled to distributions as
set forth herein.
Closing Date : February 28, 2005.
Code : The Internal Revenue Code of 1986, as
amended.
Compensating Interest Payment : As defined in Section
6.06.
Corporate Trust Office : The designated office of the
Trustee where at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office
at the date of the execution of this Agreement is located at 4 New
York Plaza, 6 th Floor, New York, New York 10004,
Attention: Institutional Trust Services/Global Debt, Bear Stearns
ALT-A Trust 2005-2. For the purpose of registration and transfer
and exchange only, the Corporate Trust Office shall be located at
2001 Bryan Street, 8th Floor, Dallas, Texas, 75201, Attn: ITS
Transfer Department.
Counterparty : Wells Fargo Bank, National Association and
any successor thereto, or any successor counterparty under the Cap
Contract.
Countrywide : Countrywide Home Loans, Inc., and its
successor in interest.
Countrywide Servicing : Countrywide Home Loans Servicing LP,
and its successor in interest.
Countrywide Servicing Agreement : The Seller’s
Warranties and Servicing Agreement, dated as of September 1, 2002,
as amended, between Countrywide Servicing and EMC attached hereto
as Exhibit H-3.
Cross-Over Date : The first Distribution Date on which the
aggregate Certificate Principal Balance of the Group II Subordinate
Certificates has been reduced to zero.
Current Interest : As of any Distribution Date, with respect
to each Class of Group I Offered Certificates, (i) the interest
accrued on the Certificate Principal Balance or Notional Amount, as
applicable, during the related Interest Accrual Period at the
applicable Pass-Through Rate plus any amount previously distributed
with respect to interest for such Certificate 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 shortfalls resulting from the
application of the Relief Act during the related Due Period;
provided, however, that for purposes of calculating Current
Interest for any such Class, amounts specified in clauses (ii)(a)
and (ii)(b) hereof for any such Distribution Date shall be
allocated first to the Class B-IO Certificates and the Class R
Certificates in reduction of amounts otherwise distributable to
such Certificates on such Distribution Date and then any excess
shall be allocated to each other Class of Certificates pro rata
based on the respective amounts of interest accrued pursuant to
clause (i) hereof for each such Class on such Distribution
Date.
Current Specified Overcollateralization Percentage : For any
Distribution Date, the percentage equivalent of a fraction, the
numerator of which is the Overcollateralization Target Amount, and
the denominator of which is the aggregate Stated Principal Balance
of the Group I Mortgage Loans for such Distribution
Date.
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, National Association, or any
successor custodian appointed pursuant to the provisions hereof and
of the Custodial Agreement.
Cut-off Date : February 1, 2005.
Cut-off Date Balance : $1,709,183,115.
Debt Service Reduction : Any reduction of the Scheduled
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.
Deficient Valuation : With respect to any Mortgage Loan, a
valuation of the Mortgaged Property by a court of competent
jurisdiction in an amount less than the then outstanding
indebtedness under the Mortgage Loan, which valuation results from
a proceeding initiated under the Bankruptcy Code or any other
similar state law or other proceeding.
Delinquent : A Mortgage Loan is “Delinquent” if
any payment due thereon is not made pursuant to the terms of such
Mortgage Loan by the close of business on the day such payment is
scheduled to be due. A Mortgage Loan is “30 days
delinquent” if such payment has not been received by the
close of business on the last day of the month immediately
succeeding the month in which such payment was due. For example, a
Mortgage Loan with a payment due on December 1 that remained unpaid
as of the close of business on January 31 would then be considered
to be 30 to 59 days delinquent. Similarly for “60 days
delinquent,” “90 days delinquent” and so
on.
Depositor : Structured Asset Mortgage Investments II Inc., a
Delaware corporation, or its successors in interest.
Depository : The Depository Trust Company, the nominee of
which is Cede & Co., or any successor thereto.
Depository Agreement : The meaning specified in Section
5.01(a) hereof.
Depository Participant : A broker, dealer, bank or other
financial institution or other Person for whom from time to time
the Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Designated Depository Institution : A depository institution
(commercial bank, federal savings bank, mutual savings bank or
savings and loan association) or trust company (which may include
the Trustee), the deposits of which are fully insured by the FDIC
to the extent provided by law.
Determination Date : With respect to each Mortgage Loan, the
Determination Date as defined in the Servicing
Agreement.
Disqualified Organization : Any of the following:
(i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are
subject to tax and, except for the 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 any
2005-2 REMIC 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 “JPMorgan Chase Bank, National Association, as
Trustee f/b/o holders of Structured Asset Mortgage Investments II
Inc., Bear Stearns ALT-A Trust 2005-2, Mortgage Pass-Through
Certificates, Series 2005-2 — Distribution Account.”
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date : The Business Day prior
to each Distribution Date.
Distribution Date : The 25th day of any month, beginning in
the month immediately following the month of the Closing Date, or,
if such 25th day is not a Business Day, the Business Day
immediately following.
DTC Custodian : JPMorgan Chase Bank, National Association,
or its successors in interest as custodian for the
Depository.
Due Date : With respect to each Mortgage Loan, the date in
each month on which its Scheduled Payment is due if such due date
is the first day of a month and otherwise is deemed to be the first
day of the following month or such other date specified in the
related Servicing Agreement.
Due Period : With respect to any Distribution Date and each
Mortgage Loan, the period commencing on the second day of the month
preceding the calendar month in which the Distribution Date occurs
and ending at the close of business on the first day of the month
in which the Distribution Date occurs.
Eligible Account : Any of (i) a segregated account
maintained with a federal or state chartered depository institution
(A) the short-term obligations of which are rated A-1 or better by
Standard & Poor’s and P-1 by Moody’s at the time of
any deposit therein or (B) insured by the FDIC (to the limits
established by such Corporation), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion
of Counsel (obtained by the Person requesting that the account be
held pursuant to this clause (i)) delivered to the Trustee prior to
the establishment of such account, the Certificateholders will have
a claim with respect to the funds in such account and a perfected
first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall
mature not later than the Business Day immediately preceding the
Distribution Date next following the date of investment in such
collateral or the Distribution Date if such Permitted Investment is
an obligation of the institution that maintains the Distribution
Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution
with which such account is maintained, (ii) a segregated trust
account or accounts maintained with a federal or state chartered
depository institution or trust company with trust powers acting in
its fiduciary capacity or (iii) a segregated account or
accounts of a depository institution acceptable to the Rating
Agencies (as evidenced in writing by the Rating Agencies that use
of any such account as the Distribution Account will not have an
adverse effect on the then-current ratings assigned to the Classes
of Certificates then rated by the Rating Agencies). Eligible
Accounts may bear interest.
EMC : EMC Mortgage Corporation, and any successor
thereto.
EMC Servicing Agreement : The Servicing Agreement, dated as
of February 1, 2005, between Structured Asset Mortgage Investments
II Inc. and EMC as attached hereto as Exhibit H-4.
ERISA : The Employee Retirement Income Security Act of 1974,
as amended.
Event of Default : As defined in Section 8.01.
EverHome : EverHome Mortgage Company (formerly known as
Alliance Mortgage Corporation), and any successor
thereto.
EverHome Servicing Agreement : The Subservicing Agreement,
dated as of August 1, 2002, between EverHome (as successor to
Alliance Mortgage Company) and EMC attached hereto as Exhibit
H-5.
Excess Cashflow : With respect to any Distribution Date, the
Remaining Excess Spread for such Distribution Date; provided,
however, that the Excess Cashflow shall include Principal Funds on
and after the Distribution Date on which the aggregate Certificate
Principal Balance of the Class I-A-1, Class I-M-1, Class I-M-2,
Class I-B-1, Class I-B-2 and Class I-B-3 Certificates has been
reduced to zero (other than Principal Funds otherwise distributed
to the Holders of Class I-A-1, Class I-M-1, Class I-M-2, Class
I-B-1, Class I-B-2 and Class I-B-3 Certificates on such
Distribution Date).
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.
Excess Spread : With respect to any Distribution Date, the
excess, if any, of (i) the Interest Funds for such Distribution
Date over (ii) the sum of the Current Interest on the Group I
Offered Certificates and Interest Carry Forward Amounts on the
Class I-A-1 Certificates, in each case on such Distribution
Date.
Extra Principal Distribution Amount : With respect to any
Distribution Date, an amount derived from Excess Spread equal to
the lesser of (i) the excess, if any, of the Overcollateralization
Target Amount for such Distribution Date over the
Overcollateralization Amount for such Distribution Date and (ii)
the Excess Spread for such Distribution Date.
Fannie Mae : Federal National Mortgage Association and any
successorthereto.
FDIC : Federal Deposit Insurance Corporation and any
successor thereto.
Final Certification : The certification substantially in the
form of Exhibit Three to the Custodial Agreement.
Fiscal Quarter : December 1 through the last day of
February, March 1 through May 31, June 1 through August 31, or
September 1 through November 30, as applicable.
Fractional Undivided Interest : With respect to any
Class of Certificates, the fractional undivided interest
evidenced by any Certificate of such Class the numerator of
which is the Certificate Principal Balance of such Certificate and
the denominator of which is the Certificate Principal Balance of
such Class. With respect to the Certificates in the aggregate, the
fractional undivided interest evidenced by (i) a Residual
Certificate will be deemed to equal 0.50% multiplied by the
percentage interest of such Residual Certificate, (ii) the Class
B-IO Certificates will be deemed to equal 1.00% and (iii) a
Certificate of any other Class will be deemed to equal 98.00%
multiplied by a fraction, the numerator of which is the Certificate
Principal Balance of such Certificate and the denominator of which
is the aggregate Certificate Principal Balance of all the
Certificates other than the Class B-IO Certificates.
Freddie Mac : Freddie Mac, formerly the Federal Home Loan
Mortgage Corporation, and any successor thereto.
Global Certificate : Any Private Certificate registered in
the name of the Depository or its nominee, beneficial interests in
which are reflected on the books of the Depository or on the books
of a Person maintaining an account with such Depository (directly
or as an indirect participant in accordance with the rules of such
depository).
GMACM : GMAC Mortgage Corporation, and any successor
thereto.
GMACM Servicing Agreement : Servicing Agreement, dated as of
May 1, 2001, as amended by Amendment No. 1, dated as of
October 1, 2001 and Amendment No. 2, dated as of July 31,
2002, between GMACM and EMC, attached hereto as Exhibit
H-6.
GreenPoint : GreenPoint Mortgage Funding, Inc., and any
successorthereto.
GreenPoint Servicing Agreement : The Purchase, Warranties
and Servicing Agreement, dated as of September 1, 2003, between
GreenPoint and EMC attached hereto as Exhibit H-7.
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.
Group I Certificates : The Group I Senior Certificates, the
Group I Subordinate Certificates and the Group I Non-Offered
Subordinate Certificates.
Group I Mortgage Loans : The Mortgage Loans identified as
such on the Mortgage Loan Schedule.
Group I Non-Offered Subordinate Certificates : The Class
I-B-3, the Class XP and the Class B-IO Certificates.
Group I Offered Certificates : The Group I Senior
Certificates and the Group I Offered Subordinate
Certificates.
Group I Offered Subordinate Certificates : The Class I-M-1,
Class I-M-2, Class I-B-1 and Class I-B-2 Certificates.
Group I Senior Certificates : The Class I-A-1
Certificates.
Group I Subordinate Certificates : The Group I Offered
Subordinate Certificates and the Group I Non-Offered Subordinate
Certificates.
Group II Certificates : The Group II Senior Certificates and
the Group II Subordinate Certificates.
Group II Mortgage Loans : The Mortgage Loans identified as
such on the Mortgage Loan Schedule.
Group II Non-Offered Subordinate Certificates : The Class
II-B-6, Class II-B-7 and Class II-B-8.
Group II Offered Certificates : The Group II Senior
Certificates and the Group II Offered Subordinate
Certificates.
Group II Offered Subordinate Certificates : The Class
II-B-1, Class II-B-2, Class II-B-3, Class II-B-4 and Class II-B-5
Certificates.
Group II Senior Certificates : The Class II-A-1, Class
II-A-2a, Class II-A-2b, Class II-A-3, Class II-A-4, Class II-X-4,
Class II-A-5, Class II-X-5 and Class II-A-6
Certificates.
Group II Subordinate Certificates : The Group II Offered
Subordinate Certificates and the Group II Non-Offered Subordinate
Certificates.
Group II-1 Certificates : The Class II-A-1
Certificates.
Group II-1 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Group II-2 Certificates : The Class II-A-2a Certificates and
the Class II-A-2b Certificates.
Group II-2 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Group II-3 Certificates : The Class II-A-3
Certificates.
Group II-3 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Group II-4 Certificates : The Class II-A-4 Certificates and
the Class II-X-4 Certificates.
Group II-4 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Group II-5 Certificates : The Class II-A-5 Certificates and
the Class II-X-5 Certificates.
Group II-5 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Group II-6 Certificates : The Class II-A-6
Certificates.
Group II-6 Loans : The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Holder : The Person in whose name a Certificate is
registered in the Certificate Register, except that, subject to
Sections 11.02(b) and 11.05(e), solely for the purpose of giving
any consent pursuant to this Agreement, any Certificate registered
in the name of the Depositor, the Master Servicer or the Trustee or
any Affiliate thereof shall be deemed not to be outstanding and the
Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite percentage of
Fractional Undivided Interests necessary to effect any such consent
has been obtained.
HomeBanc : HomeBanc Mortgage Corporation, and any successor
thereto.
HomeBanc Servicing Agreement : Purchase, Warranties and
Servicing Agreement, dated as of January 1, 2004, between HomeBanc
and EMC, attached hereto as Exhibit H-8.
Indemnified Persons : The Trustee, the Master Servicer, the
Custodian and the Securities Administrator and their officers,
directors, agents and employees and, with respect to the Trustee,
any separate co-trustee and its officers, directors, agents and
employees.
Independent : When used with respect to any specified
Person, this term means that such Person (a) is in fact independent
of the Depositor or the Master Servicer and of any Affiliate of the
Depositor or the Master Servicer, (b) does not have any direct
financial interest or any material indirect financial interest in
the Depositor or the Master Servicer or any Affiliate of the
Depositor or the Master Servicer and (c) is not connected with the
Depositor or the Master Servicer or any Affiliate as an officer,
employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Index : The index, if any, specified in a Mortgage Note by
reference to which the related Mortgage Interest Rate will be
adjusted from time to time.
Individual Certificate : Any Private Certificate registered
in the name of the Holder other than the Depository or its
nominee.
Initial Certification : The certification substantially in
the form of Exhibit One to the Custodial Agreement.
Institutional Accredited Investor : Any Person meeting the
requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation D
under the Securities Act or any entity all of the equity holders in
which come within such paragraphs.
Insurance Policy : With respect to any Mortgage Loan, 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, including the related
Servicer’s costs and expenses incurred in connection with
presenting claims under the related Insurance Policies.
Interest Accrual Period : With respect to each Distribution
Date, for each Class of Group II Certificates, the calendar
month preceding the month in which such Distribution Date occurs.
The Interest Accrual Period for the Group I Offered Certificates
will be the period from and including the preceding distribution
date (or from the Closing Date, in the case of the first
Distribution Date) to and including the day prior to the current
Distribution Date.
Interest Adjustment Date : With respect to a Mortgage Loan,
the date, if any, specified in the related Mortgage Note on which
the Mortgage Interest Rate is subject to adjustment.
Interest Carryforward Amount : As of the first Distribution
Date and with respect to each Class of Group I Offered
Certificates, zero, and for each Distribution Date thereafter, the
sum of (i) the excess of (a) the Current Interest for such Class
with respect to prior Distribution Dates over (b) the amount
actually distributed to such Class of Group I Certificates with
respect to interest on or after such prior Distribution Dates and
(ii) interest thereon (to the extent permitted by applicable law)
at the applicable Pass-Through Rate for such Class for the related
Interest Accrual Period including the Interest Accrual Period
relating to such Distribution Date.
Interest Funds : For any Distribution Date and Loan Group I,
(i) the sum, without duplication, of (a) all scheduled interest
collected in respect to the related Group I Mortgage Loans during
the related Due Period less the related Servicing Fee, (b) all
Monthly Advances relating to interest with respect to the related
Group I Mortgage Loans made on or prior to the related Distribution
Account Deposit Date, (c) all Compensating Interest Payments with
respect to the Group I Mortgage Loans and required to be remitted
by the Master Servicer pursuant to this Agreement or the related
Servicer pursuant to the related Servicing Agreement with respect
to such Distribution Date, (d) Liquidation Proceeds with respect to
the related Group I Mortgage Loans collected during the related
Prepayment Period (or, in the case of Subsequent Recoveries, during
the related Due Period), to the extent such Liquidation Proceeds
relate to interest, (e) all amounts relating to interest with
respect to each related Group I Mortgage Loan purchased by EMC
pursuant to Sections 2.02 and 2.03 or by the Depositor pursuant to
Section 3.21 during the related Due Period and (f) all amounts in
respect of interest paid by EMC pursuant to Section 10.01 in
respect to Loan Group I, in each case to the extent remitted by EMC
or its designee, as applicable, to the Distribution Account
pursuant to this Agreement minus (ii) all amounts relating to
interest required to be reimbursed pursuant to Sections 4.01, 4.03
and 4.05 or as otherwise set forth in this Agreement and allocated
to Loan Group I.
Interest Shortfall : With respect to any Distribution Date
and each Mortgage Loan that during the related Prepayment Period
was the subject of a Principal Prepayment or constitutes a Relief
Act Mortgage Loan, an amount determined as follows:
(a)
Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one
month’s interest at the applicable Net Rate on the amount of
such prepayment and (ii) the amount of interest for the
calendar month of such prepayment (adjusted to the applicable Net
Rate) received at the time of such prepayment;
(b)
Principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one
month’s interest at the applicable Net Rate on the Stated
Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Net Rate)
received at the time of such prepayment; and
(c)
Relief Act Mortgage Loans: As to any Relief Act Mortgage Loan, the
excess of (i) 30 days’ interest (or, in the case of a
principal prepayment in full, interest to the date of prepayment)
on the Stated Principal Balance thereof (or, in the case of a
principal prepayment in part, on the amount so prepaid) at the
related Net Rate over (ii) 30 days’ interest (or, in the
case of a principal prepayment in full, interest to the date of
prepayment) on such Stated Principal Balance (or, in the case of a
Principal Prepayment in part, on the amount so prepaid) at the
annual interest rate required to be paid by the Mortgagor as
limited by application of the Relief Act.
Interim Certification : The certification substantially in
the form of Exhibit Two to the Custodial Agreement.
Investment Letter : The letter to be furnished by each
Institutional Accredited Investor which purchases any of the
Private Certificates in connection with such purchase,
substantially in the form set forth as Exhibit F-1
hereto.
Lender-Paid PMI Rate : With respect to each Mortgage Loan
covered by a lender-paid primary mortgage insurance policy, the
premium to be paid by the applicable Servicer out of interest
collections on the related Mortgage Loan, as stated in the Mortgage
Loan Schedule.
LIBOR Business Day : Any day other than a Saturday or a
Sunday or a day on which banking institutions in the city of
London, England are required or authorized by law to be
closed.
LIBOR Determination Date : With respect to each Class of
Offered Certificates and for the first Interest Accrual Period,
February 24, 2005. With respect to each Class of Offered
Certificates and any Interest Accrual Period thereafter, the second
LIBOR Business Day preceding the commencement of such Interest
Accrual Period.
Liquidated Mortgage Loan : Any defaulted Mortgage Loan as to
which the Servicer or the Master 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 Master Servicer or the Servicer has
certified that such Mortgage Loan has become a Liquidated Mortgage
Loan.
Liquidation Expenses : With respect to a Mortgage Loan in
liquidation, unreimbursed expenses paid or incurred by or for the
account of the Master Servicer or the Servicer in connection with
the liquidation of such Mortgage Loan and the related Mortgage
Property, such expenses including (a) property protection expenses,
(b) property sales expenses, (c) foreclosure and sale costs,
including court costs and reasonable attorneys’ fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
Liquidation Proceeds : Amounts received in connection with
the liquidation of a defaulted Mortgage Loan, whether through
trustee’s sale, foreclosure sale, Insurance Proceeds,
condemnation proceeds or otherwise and Subsequent
Recoveries.
Loan Group : Loan Group I, Loan Group II, Loan
Group II-1, Loan Group II-2, Loan Group II-3, Loan Group II-4,
Loan Group II-5 or Loan Group II-6, as applicable.
Loan Group I : The group of Mortgage Loans designated
as belonging to Loan Group I on the Mortgage Loan
Schedule.
Loan Group II : Any of Loan Group II-1, Loan Group II-2,
Loan Group II-3, Loan Group II-4, Loan Group II-5 or Loan Group
II-6.
Loan Group II-1 : The group of Mortgage Loans
designated as belonging to Loan Group II-1 on the Mortgage
Loan Schedule.
Loan Group II-2 : The group of Mortgage Loans
designated as belonging to Loan Group II-2 on the Mortgage
Loan Schedule.
Loan Group II-3 : The group of Mortgage Loans
designated as belonging to Loan Group II-3 on the Mortgage
Loan Schedule.
Loan Group II-4 : The group of Mortgage Loans
designated as belonging to Loan Group II-4 on the Mortgage
Loan Schedule.
Loan Group II-5 : The group of Mortgage Loans
designated as belonging to Loan Group II-5 on the Mortgage
Loan Schedule.
Loan Group II-6 : The group of Mortgage Loans
designated as belonging to Loan Group II-6 on the Mortgage
Loan Schedule.
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 Original Value of the related Mortgaged
Property.
Loss Allocation Limitation : The meaning specified in
Section 6.02.2(c)hereof.
Loss Severity Percentage : With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of
which is the amount of Realized Losses incurred on a Mortgage Loan
and the denominator of which is the Stated Principal Balance of
such Mortgage Loan immediately prior to the liquidation of such
Mortgage Loan.
Lost Notes : The original Mortgage Notes that have been
lost, as indicated on the Mortgage Loan Schedule.
Margin : With respect to any Distribution Date on or prior
to the first possible Optional Termination Date with respect to the
Group I Mortgage Loans and (i) with respect to the Class I-A-1
Certificates, 0.25% per annum, (ii) with respect to the Class I-M-1
Certificates, 0.50% per annum, (iii) with respect to the Class
I-M-2 Certificates, 0.75% per annum, (iv) with respect to the Class
I-B-1 Certificates, 1.30% per annum, (v) with respect to the Class
I-B-2 Certificates, 2.00% per annum, and (vi) with respect to the
Class I-B-3 Certificates, 2.00% per annum; and with respect to any
Distribution Date after the first possible Optional Termination
Date and (i) with respect to the Class I-A-1 Certificates, 0.50%
per annum, (ii) with respect to the Class I-M-1 Certificates, 0.75%
per annum, (iii) with respect to the Class I-M-2 Certificates,
1.125% per annum, (iv) with respect to the Class I-B-1
Certificates, 1.95% per annum, (v) with respect to the Class I-B-2
Certificates, 3.00% per annum, and (vi) with respect to the Class
I-B-3 Certificates, 3.00% per annum.
Marker Rate : With respect to the Class B-IO Certificates or
the REMIC IV Regular Interest B-IO-I and any Distribution Date, in
relation to the REMIC II Regular Interests LT1, LT2, LT3 and
LT4, a per annum rate equal to two (2) times the weighted average
of the Uncertificated Pass-Through Rates for REMIC II Regular
Interest LT2 and REMIC II Regular Interest LT3.
Master Servicer : As of the Closing Date, Wells Fargo Bank,
National Association and, thereafter, its respective successors in
interest that meet the qualifications of the Servicing Agreements
and this Agreement.
Master Servicer Certification : A written certification
covering servicing of the Mortgage Loans by the Servicers and
signed by an officer of the Master Servicer that complies with
(i) the Sarbanes-Oxley Act of 2002, as amended from time to
time, and (ii) the February 21, 2003 Statement by the
Staff of the Division of Corporation Finance of the Securities and
Exchange Commission Regarding Compliance by Asset-Backed Issuers
with Exchange Act Rules 13a-14 and 15d-14, as in effect from time
to time; provided that if, after the Closing Date (a) the
Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred
to in clause (ii) is modified or superceded by any subsequent
statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any
future releases, rules and regulations are published by the
Securities and Exchange Commission from time to time pursuant to
the Sarbanes-Oxley Act of 2002, which in any such case affects the
form or substance of the required certification and results in the
required certification being, in the reasonable judgment of the
Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Master Servicer
Certification shall be as agreed to by the Master Servicer and the
Depositor following a negotiation in good faith to determine how to
comply with any such new requirements.
Master Servicer Collection Account : The trust account or
accounts created and maintained pursuant to Section 4.02,
which shall be denominated “JPMorgan Chase Bank, National
Association, as Trustee f/b/o holders of Structured Asset Mortgage
Investments II Inc., Bear Stearns ALT-A Trust 2005-2, Mortgage
Pass-Through Certificates, Series 2005-2, Collection
Account.” The Master Servicer Collection Account shall be an
Eligible Account.
Master Servicing Compensation : The meaning specified in
Section 3.14.
Material Defect : The meaning specified in Section
2.02(a).
Maximum Lifetime Mortgage Rate : The maximum level to which
a Mortgage Interest Rate can adjust in accordance with its terms,
regardless of changes in the applicable Index.
MERS : Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of
Delaware, or any successor thereto.
MERS® System : The system of recording transfers of
Mortgage Loans electronically maintained by MERS.
MIN : The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS® System.
Minimum Lifetime Mortgage Rate : The minimum level to which
a Mortgage Interest Rate can adjust in accordance with its terms,
regardless of changes in the applicable Index.
MOM Loan : With respect to any Mortgage Loan, MERS acting as
the mortgagee of such Mortgage Loan, solely as nominee for the
originator of such Mortgage Loan and its successors and assigns, at
the origination thereof.
Monthly Advance : An advance of principal or interest
required to be made by the applicable Servicer pursuant to the
related Servicing Agreement or the Master Servicer pursuant to
Section 6.05.
Monthly Delinquency Percentage : With respect to a
Distribution Date, the percentage equivalent of a fraction, the
numerator of which is the aggregate Stated Principal Balance of the
Group I Mortgage Loans that are 60 days or more Delinquent or are
in bankruptcy or foreclosure or are REO Properties for such
Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of Group I Mortgage Loans for such
Distribution Date.
Moody's : Moody's Investors Service, Inc. or its successor
in interest.
Mortgage : The mortgage, deed of trust or other instrument
creating a first priority lien on an estate in fee simple or
leasehold interest in real property securing a Mortgage
Loan.
Mortgage File : The mortgage documents listed in
Section 2.01(b) pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage Interest Rate : The annual rate at which interest
accrues from time to time on any Mortgage Loan pursuant to the
related Mortgage Note, which rate is initially equal to the
“Mortgage Interest Rate” set forth with respect thereto
on the Mortgage Loan Schedule.
Mortgage Loan : A mortgage loan transferred and assigned to
the Trustee pursuant to Section 2.01 or Section 2.04 and
held as a part of the Trust Fund, as identified in the Mortgage
Loan Schedule (which shall include, without limitation, with
respect to each Mortgage Loan, each related Mortgage Note, Mortgage
and Mortgage File and all rights appertaining thereto), including a
mortgage loan the property securing which has become an REO
Property.
Mortgage Loan Purchase Agreement : The Mortgage Loan
Purchase Agreement dated as of February 28, 2005, between EMC, as
seller, and Structured Asset Mortgage Investments II Inc., as
purchaser, and all amendments thereof and supplements thereto,
attached as Exhibit J.
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 or the Mortgage Loan
Purchase Agreement, as the case may be.
Mortgage Note : The originally executed note or other
evidence of the indebtedness of a Mortgagor under the related
Mortgage Loan.
Mortgaged Property : Land and improvements securing the
indebtedness of a Mortgagor under the related Mortgage Loan or, in
the case of REO Property, such REO Property.
Mortgagor : The obligor on a Mortgage Note.
Net Interest Shortfall : With respect to any Distribution
Date, the Interest Shortfall, if any, for such Distribution Date
net of Compensating Interest Payments made with respect to such
Distribution Date.
Net Liquidation Proceeds : As to any Liquidated Mortgage
Loan, Liquidation Proceeds net of (i) Liquidation Expenses
which are payable therefrom to 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 Rate : With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the sum of (1) the
Servicing Fee Rate and (2) the Lender Paid PMI Rate, if any,
attributable thereto, in each case expressed as a per annum
rate.
Net Rate Cap : For any Distribution Date and each of the
Group I Offered Certificates, the weighted average of the Net Rates
of the Group I Mortgage Loans as of the beginning of the related
Due Period, weighted on the basis of the Stated Principal Balances
thereof as of the preceding Distribution Date, as adjusted to an
effective rate reflecting the accrual of interest on the basis of a
360-day year and the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the Net
Rate Cap with respect to the Group I Offered Certificates is equal
to the Uncertificated Pass-Through Rate for the REMIC II Regular
Interests LT1 and LT2.
Non-Offered Subordinate Certificates : The Group I
Non-Offered Subordinate Certificates and the Group II Non-Offered
SubordinateCertificates.
Nonrecoverable Advance : Any advance or Monthly Advance
(i) which was previously made or is proposed to be made by the
Master Servicer, the Trustee (as successor Master Servicer) or the
applicable Servicer and (ii) which, in the good faith judgment
of the Master Servicer, the Trustee or the applicable Servicer ,
will not or, in the case of a proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer, the
Trustee (as successor Master Servicer) or the applicable Servicer
from Liquidation Proceeds, Insurance Proceeds or future payments on
the Mortgage Loan for which such advance or Monthly Advance was
made or is proposed to be made.
Notional Amount : The Notional Amount of the Class B-IO
Certificates immediately prior to any Distribution Date is equal to
the aggregate of the Uncertificated Principal Balances of the REMIC
II Regular Interests.
Offered Certificates : The Group I Offered Certificates and
the Group II Offered Certificates.
Offered Subordinate Certificates : The Group I Offered
Subordinate Certificates and the Group II Offered Subordinate
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 Interest Accrual
Period, the rate determined by the Securities Administrator on the
related LIBOR Determination Date on the basis of the rate for U.S.
dollar deposits for one month that appears on Telerate Screen Page
3750 as of 11:00 a.m. (London time) on such LIBOR Determination
Date; provided that the parties hereto acknowledge that One-Month
LIBOR for the first Interest Accrual Period shall equal 2.67% per
annum. If such rate does not appear on such page (or such other
page as may replace that page on that service, or if such service
is no longer offered, such other service for displaying One-Month
LIBOR or comparable rates as may be reasonably selected by the
Securities Administrator), One-Month LIBOR for the applicable
Interest Accrual Period will be the Reference Bank Rate. If no such
quotations can be obtained by the Securities Administrator and no
Reference Bank Rate is available, One-Month LIBOR will be One-Month
LIBOR applicable to the preceding Interest Accrual
Period.
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 Company, the Master Servicer or the
Depositor.
Optional Termination Date : With respect to the Group I
Mortgage Loans, the Distribution Date on which the aggregate Stated
Principal Balance of the Group I Mortgage Loans is less than 20% of
the Cut-off Date Balance and with respect to the Group II Mortgage
Loans, the Distribution Date on which the aggregate Stated
Principal Balance of the Group II Mortgage Loans is less than 10%
of the Cut-off Date Balance.
Original Group II Subordinate Principal Balance : The sum of
the aggregate Certificate Principal Balances of each Class of
Group II Subordinate Certificates as of the Closing
Date.
Original Value : The lesser of (i) the Appraised Value
or (ii) the sales price of a Mortgaged Property at the time of
origination of a Mortgage Loan, except in instances where either
clauses (i) or (ii) is unavailable, the other may be used
to determine the Original Value, or if both clauses (i) and
(ii) are unavailable, Original Value may be determined from
other sources reasonably acceptable to the Depositor.
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 : With respect to any
Distribution Date, the excess, if any, of (a) the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such
Distribution Date over (b) the aggregate Certificate Principal
Balance of the Group I Offered Certificates on such Distribution
Date (after taking into account the payment of principal other than
any Extra Principal Distribution Amount on such
Certificates).
Overcollateralization Target Amount : $2,114,704.
Pass-Through Rate : As to each Class of Certificates,
the rate of interest determined as provided with respect thereto in
Section 5.01(c). Any monthly calculation of interest at a
stated rate shall be based upon annual interest at such rate
divided by twelve.
Periodic Rate Cap : With respect to each Mortgage Loan, the
maximum adjustment that can be made to the Mortgage Interest Rate
on each Interest Adjustment Date in accordance with its terms,
regardless of changes in the applicable Index.
Permitted Investments : Any one or more of the following
obligations or securities held in the name of the Trustee for the
benefit of the Certificateholders:
(i)
direct obligations of, and obligations the timely payment of which
are fully guaranteed by the United States of America or any agency
or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United
States of America;
(ii)
(a) demand or time deposits, federal funds or bankers’
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any
state thereof (including the Trustee or the Master Servicer or its
Affiliates acting in its commercial banking capacity) and subject
to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or the
short-term debt rating and/or the long-term unsecured debt
obligations of such depository institution or trust company at the
time of such investment or contractual commitment providing for
such investment have the Applicable Credit Rating or better from
each Rating Agency and (b) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit
Insurance Corporation;
(iii)
repurchase obligations with respect to (a)
any security described in clause (i) above or (b) any other
security issued or guaranteed by an agency or instrumentality of
the United States of America, the obligations of which are backed
by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust
company (acting as principal) described in clause (ii)(a) above
where the Trustee holds the security therefor;
(iv)
securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its
Affiliates) incorporated under the laws of the United States of
America or any state thereof that have the Applicable Credit Rating
or better from each Rating Agency at the time of such investment or
contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will
not be Permitted Investments to the extent that investments therein
will cause the then outstanding principal amount of securities
issued by such corporation and held as part of the Trust to exceed
10% of the aggregate Outstanding Principal Balances of all the
Mortgage Loans and Permitted Investments held as part of the
Trust;
(v)
commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or
on a specified date not more than one year after the date of
issuance thereof) having the Applicable Credit Rating or better
from each Rating Agency at the time of such investment;
(vi)
a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii)
any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to each Rating Agency
as evidenced in writing by each Rating Agency to the Trustee;
and
(viii)
any money market or common trust fund having the Applicable Credit
Rating or better from each Rating Agency, including any such fund
for which the Trustee or the Master Servicer or any affiliate of
the Trustee or the Master Servicer acts as a manager or an advisor;
provided, however, that no instrument or security shall be a
Permitted Investment if such instrument or security evidences a
right to receive only interest payments with respect to the
obligations underlying such instrument or if such security provides
for payment of both principal and interest with a yield to maturity
in excess of 120% of the yield to maturity at par or if such
instrument or security is purchased at a price greater than
par.
Permitted Transferee : Any Person other than a Disqualified
Organization or an “electing large partnership” (as
defined by Section 775 of the Code).
Person : Any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Physical Certificates : The Residual Certificates and the
Private Certificates.
Plan : The meaning specified in Section 5.07(a).
Prepayment Charge : With respect to any Mortgage Loan, the
charges or premiums, if any, due in connection with a full or
partial prepayment of such Mortgage Loan in accordance with the
terms thereof.
Prepayment Charge Loan : Any Group I Mortgage Loan for which
a Prepayment Charge may be assessed and to which such Prepayment
Charge the Class XP Certificates are entitled, as indicated on the
Mortgage Loan Schedule.
Prepayment Interest Shortfall : With respect to any
Distribution Date, for each Mortgage Loan that was the subject of a
partial Principal Prepayment or a Principal Prepayment in full
during the related Prepayment Period (other than a Principal
Prepayment in full resulting from the purchase of a Group I
Mortgage Loan pursuant to Section 2.02, 2.03, 3.21 or 10.01
hereof), the amount, if any, by which (i) one month’s
interest at the applicable Net Rate on the Stated Principal Balance
of such Group I Mortgage Loan immediately prior to such prepayment
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 less the sum
of (a) any Prepayment Charges and (b) the related Servicing
Fee.
Prepayment Period : With respect to a Distribution Date, the
period from the sixteenth day of the calendar month preceeding the
calendar month in which such Distribution Date occurs through the
close of business on the fifteenth day of the calendar month in
which such Distribution Date occurs in the case of the Mortgage
Loans for which EMC is the Servicer and such period as is provided
in the related Servicing Agreement with respect to the remaining
Mortgage Loans.
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, an amount equal to the sum of (i) the
Principal Funds for such Distribution Date and (ii) any Extra
Principal Distribution Amount for such Distribution
Date.
Principal Funds : the sum, without duplication,
of
|
|
1.
|
the Scheduled
Principal collected on the Group I Mortgage Loans during the
related Due Period or advanced on or before the related servicer
advance date,
|
|
|
2.
|
prepayments in
respect of the Group I Mortgage Loans, exclusive of any prepayment
charges, collected in the related Prepayment Period,
|
|
|
3.
|
the Stated
Principal Balance of each Group I Mortgage Loan that was
repurchased by the Depositor or the related Servicer during the
related Due Period,
|
|
|
4.
|
the amount, if
any, by which the aggregate unpaid principal balance of any
Substitute Mortgage Loans is less than the aggregate unpaid
principal balance of any deleted mortgage loans delivered by the
related Servicer in connection with a substitution of a Group I
Mortgage Loan during the related Due Period,
|
|
|
5.
|
all Liquidation
Proceeds collected during the related Prepayment Period (or in the
case of Subsequent Recoveries, during the related Due Period) on
the Group I Mortgage Loans, to the extent such Liquidation Proceeds
relate to principal, less all related Nonrecoverable Advances
relating to principal reimbursed during the related Due
Period,
|
|
|
6.
|
the principal
portion of the purchase price of the assets of the Trust allocated
to Loan Group I upon the exercise by EMC or its designee of its
optional termination right with respect to the Group I Mortgage
Loans; minus
|
|
|
7.
|
any amounts
required to be reimbursed to EMC, the Depositor, a Servicer, the
Master Servicer, the Custodian, the Trustee or the Securities
Administrator and allocated to Loan Group I, as provided in the
Agreement.
|
Principal Prepayment : Any payment (whether partial or full)
or other recovery of principal on a Mortgage Loan which is received
in advance of its scheduled Due Date to the extent that it is not
accompanied by an amount as to interest representing scheduled
interest due on any date or dates in any month or months subsequent
to the month of prepayment, including Insurance Proceeds and
Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds received at the time a Mortgage Loan becomes a
Liquidation Mortgage Loan.
Private Certificates : The Class I-B-3, Class B-IO, Class
XP, Class II-B-6, Class II-B-7 and Class II-B-8
Certificates.
Prospectus : The prospectus, dated December 20, 2004, as
supplemented by the prospectus supplement dated February 24, 2005,
relating to the offering of the Offered Certificates.
Protected Account : An account established and maintained
for the benefit of Certificateholders by each Servicer with respect
to the related Mortgage Loans and with respect to REO Property
pursuant to the related Servicing Agreement.
QIB : A Qualified Institutional Buyer as defined in Rule
144A promulgated under the Securities Act.
Qualified Insurer : Any insurance company duly qualified as
such under the laws of the state or states in which the related
Mortgaged Property or Mortgaged Properties is or are located, duly
authorized and licensed in such state or states to transact the
type of insurance business in which it is engaged and approved as
an insurer by the Master Servicer, so long as the claims paying
ability of which is acceptable to the Rating Agencies for
pass-through certificates having the same rating as the
Certificates rated by the Rating Agencies as of the Closing
Date.
Rating Agencies : Moody’s and S&P.
Realized Loss : Any (i) Bankruptcy Loss or (ii) as
to any Liquidated Mortgage Loan, (x) the Outstanding Principal
Balance of such Liquidated Mortgage Loan plus accrued and unpaid
interest thereon at the Mortgage Interest Rate through the last day
of the month of such liquidation, less (y) the related Net
Liquidation Proceeds with respect to such Mortgage Loan and the
related Mortgaged Property that are allocated to principal. In
addition, to the extent the Master Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss with respect to that Mortgage Loan will be reduced to
the extent such recoveries are applied to reduce the Certificate
Principal Balance of any Class of Certificates on any Distribution
Date.
Realized
Losses on the Mortgage Loans shall be allocated to the REMIC I
Regular Interests as follows: (1) The interest portion of Realized
Losses and Net Interest Shortfalls on the Group II-1 Loans, if any,
shall be allocated between the Class Y-1 and Class Z-1 Regular
Interests pro rata according to the amount of interest accrued but
unpaid thereon, in reduction thereof; (2) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-2
Loans, if any, shall be allocated between the Class Y-2 and Class
Z-2 Regular Interests pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof; (3) the interest
portion of Realized Losses and Net Interest Shortfalls on the Group
II-3 Loans, if any, shall be allocated between the Class Y-3 and
Class Z-3 Regular Interests pro rata according to the amount of
interest accrued but unpaid thereon, in reduction thereof; (4) the
interest portion of Realized Losses and Net Interest Shortfalls on
the Group II-4 Loans, if any, shall be allocated between the Class
Y-4 and Class Z-4 Regular Interests pro rata according to the
amount of interest accrued but unpaid thereon, in reduction
thereof; (5) the interest portion of Realized Losses and Net
Interest Shortfalls on the Group II-5 Loans, if any, shall be
allocated between the Class Y-5 and Class Z-5 Regular Interests pro
rata according to the amount of interest accrued but unpaid
thereon, in reduction thereof; and (6) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-6
Loans, if any, shall be allocated between the Class Y-6 and Class
Z-6 Regular Interests pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof. Any interest
portion of such Realized Losses in excess of the amount allocated
pursuant to the preceding sentence shall be treated as a principal
portion of Realized Losses not attributable to any specific
Mortgage Loan in such Group and allocated pursuant to the
succeeding sentences. The principal portion of Realized Losses with
respect to the Mortgage Loans shall be allocated to the
REMIC I Regular Interests as follows: (1) the principal
portion of Realized Losses on the Group II-1 Loans shall be
allocated, first, to the Class Y-1 Regular Interest to the extent
of the Class Y-1 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and,
second, the remainder, if any, of such principal portion of such
Realized Losses shall be allocated to the Class Z-1 Regular
Interest in reduction of the Uncertificated Principal Balance
thereof; (2) the principal portion of Realized Losses on the Group
II-2 Loans shall be allocated, first, to the Class Y-2 Regular
Interest to the extent of the Class Y-2 Principal Reduction Amount
in reduction of the Uncertificated Principal Balance of such
Regular Interest and, second, the remainder, if any, of such
principal portion of such Realized Losses shall be allocated to the
Class Z-2 Regular Interest in reduction of the Uncertificated
Principal Balance thereof; (3) the principal portion of Realized
Losses on the Group II-3 Loans shall be allocated, first, to the
Class Y-3 Regular Interest to the extent of the Class Y-3 Principal
Reduction Amount in reduction of the Uncertificated Principal
Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-3 Regular Interest in reduction of the
Uncertificated Principal Balance thereof; (4) the principal portion
of Realized Losses on the Group II-4 Loans shall be allocated,
first, to the Class Y-4 Regular Interest to the extent of the Class
Y-4 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized
Losses shall be allocated to the Class Z-4 Regular Interest in
reduction of the Uncertificated Principal Balance thereof; (5) the
principal portion of Realized Losses on the Group II-5 Loans shall
be allocated, first, to the Class Y-5 Regular Interest to the
extent of the Class Y-5 Principal Reduction Amount in reduction of
the Uncertificated Principal Balance of such Regular Interest and,
second, the remainder, if any, of such principal portion of such
Realized Losses shall be allocated to the Class Z-5 Regular
Interest in reduction of the Uncertificated Principal Balance
thereof; and (6) the principal portion of Realized Losses on the
Group II-6 Loans shall be allocated, first, to the Class Y-6
Regular Interest to the extent of the Class Y-6 Principal Reduction
Amount in reduction of the Uncertificated Principal Balance of such
Regular Interest and, second, the remainder, if any, of such
principal portion of such Realized Losses shall be allocated to the
Class Z-6 Regular Interest in reduction of the Uncertificated
Principal Balance thereof. For any Distribution Date, reductions in
the Uncertificated Principal Balances of the Class Y and Class Z
Regular Interest pursuant to this definition of Realized Loss shall
be determined, and shall be deemed to occur, prior to any
reductions of such Uncertificated Principal Balances by
distributions on such Distribution Date.
Record Date : For each Class of Group I Certificates, the
Business Day preceding the applicable Distribution Date so long as
such Class of Certificates remains in book-entry form; and
otherwise, the close of business on the last Business Day of the
month immediately preceding the month of such Distribution Date.
For each Class of Group II Certificates, the close of business on
the last Business Day of the month immediately preceding the month
of such Distribution Date.
Reference Bank : A leading bank selected by the Securities
Administrator that is engaged in transactions in Eurodollar
deposits in the international Eurocurrency market.
Reference Bank Rate : With respect to any Interest Accrual
Period, the arithmetic mean, rounded upwards, if necessary, to the
nearest whole multiple of 0.03125%, of the offered rates for United
States dollar deposits for one month that are quoted by the
Reference Banks as of 11:00 a.m., New York City time, on the
related interest determination date to prime banks in the London
interbank market for a period of one month in amounts approximately
equal to the aggregate Certificate Principal Balance of all Classes
of Group I Offered Certificates for such Interest Accrual Period,
provided that at least two such Reference Banks provide such rate.
If fewer than two offered rates appear, the Reference Bank Rate
will be the arithmetic mean, rounded upwards, if necessary, to the
nearest whole multiple of 0.03125%, of the rates quoted by one or
more major banks in New York City, selected by the securities
administrator, as of 11:00 a.m., New York City time, on such date
for loans in U.S. dollars to leading European banks for a period of
one month in amounts approximately equal to the aggregate
Certificate Principal Balance of all Classes of Group I Offered
Certificates.
Reinvestment Agreements : One or more reinvestment
agreements, acceptable to the Rating Agencies, from a bank,
insurance company or other corporation or entity (including the
Trustee).
Related Certificates (A) For each class of REMIC III Regular
Interests, the Class or Classes of Certificates show opposite the
name of such REMIC III Regular Interest in the following
table:
|
|
|
|
REMIC III
Regular Interest
|
Classes of
Certificates
|
|
II-A-1
|
II-A-1
|
|
II-A-2a
|
II-A-2a
|
|
II-A-2b
|
II-A-2b
|
|
II-A-3
|
II-A-3
|
|
II-A-4
|
II-A-4
|
|
II-A-5
|
II-A-5
|
|
II-A-6
|
II-A-6
|
|
II-B-1
|
II-B-1
|
|
II-B-2
|
II-B-2
|
|
II-B-3
|
II-B-3
|
|
II-B-4
|
II-B-4
|
|
II-B-5
|
II-B-5
|
|
II-B-6
|
II-B-6
|
|
II-B-7
|
II-B-7
|
|
II-B-8
|
II-B-8
|
(B) For
each class of REMIC IV Regular Interest, the Class or Classes of
Certificates show opposite the name of such REMIC III Regular
Interest in the following table:
|
|
|
|
REMIC IV
Regular Interest
|
Classes of
Certificates
|
|
I-A-1
|
I-A-1
|
|
I-M-1
|
I-M-1
|
|
I-M-2
|
I-M-2
|
|
I-B-1
|
I-B-1
|
|
I-B-2
|
I-B-2
|
|
I-B-3
|
I-B-3
|
|
X-P
|
X-P
|
|
B-IO-I and
B-IO-P
|
B-IO
|
|
II-A-1
|
II-A-1
|
|
II-A-2a
|
II-A-2a
|
|
II-A-2b
|
II-A-2b
|
|
II-A-3
|
II-A-3
|
|
II-A-4
|
II-A-4
|
|
II-X-4
|
II-A-4;
II-X-4
|
|
II-A-5
|
II-A-5
|
|
II-X-5
|
II-A-5;
II-X-5
|
|
II-A-6
|
II-A-6
|
|
II-B-1
|
II-B-1
|
|
II-B-2
|
II-B-2
|
|
II-B-3
|
II-B-3
|
|
II-B-4
|
II-B-4
|
|
II-B-5
|
II-B-5
|
|
II-B-6
|
II-B-6
|
|
II-B-7
|
II-B-7
|
|
II-B-8
|
II-B-8
|
(C) For
the REMIC V Regular Interest, the Class B-IO
Certificates.
Relief Act : The Servicemembers Civil Relief Act, as
amended, or similar state law.
Relief Act Mortgage Loan : Any Mortgage Loan as to which the
Scheduled Payment thereof has been reduced due to the application
of the Relief Act.
Remaining Excess Spread : With respect to any Distribution
Date, the Excess Spread remaining after the distribution of the
Extra Principal Distribution Amount for such Distribution
Date.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
REMIC Administrator : The Trustee; provided that if the
REMIC Administrator is found by a court of competent jurisdiction
to no longer be able to fulfill its obligations as REMIC
Administrator under this Agreement the Servicer or Trustee acting
as Servicer shall appoint a successor REMIC Administrator, subject
to assumption of the REMIC Administrator obligations under this
Agreement.
REMIC Interest : Any of the REMIC I, REMIC II, REMIC
III, REMIC IV and REMIC V Interests.
REMIC Opinion : An Opinion of Independent Counsel, to the
effect that the proposed action described therein would not, under
the REMIC Provisions, (i) cause any 2005-2 REMIC to fail to
qualify as a REMIC while any regular interest in such 2005-2 REMIC
is outstanding, (ii) result in a tax on prohibited
transactions with respect to any 2005-2 REMIC or
(iii) constitute a taxable contribution to any 2005-2 REMIC
after the Startup Day.
REMIC Provisions : The provisions of the federal income tax
law relating to REMICs, which appear at Sections 860A through 860G
of the Code, and related provisions and regulations promulgated
thereunder, as the foregoing may be in effect from time to
time.
REMIC Regular Interest : Any of of the REMIC I, REMIC
II, REMIC III , REMIC IV and REMIC V Regular Interests.
REMIC I : The segregated pool of assets, with respect
to which a REMIC election is made pursuant to this Agreement,
consisting of:
(a)
the Group II Mortgage Loans and the related Mortgage Files and
collateral securing such Group II Mortgage Loans,
(b)
all payments on and collections in respect of the Group II Mortgage
Loans due after the Cut-off Date as shall be on deposit in the
Master Servicer Collection Account or in the Distribution Account
and identified as belonging to the Trust Fund,
(c)
property that secured a Group II Mortgage Loan and that has been
acquired for the benefit of the Certificateholders by foreclosure
or deed in lieu of foreclosure,
(d)
the hazard insurance policies and Primary Mortgage Insurance
Policies, if any, relating to the Group II Mortgage Loans,
and
(e)
all proceeds of clauses (a) through (d) above.
REMIC I Available Distribution Amount : For each of the
Group II Loan Groups for any Distribution Date, the Available Funds
for such Loan Group, or, if the context so requires the aggregate
of the Available Funds for all Group II Loan Groups.
REMIC I Distribution Amount : For any Distribution
Date, the REMIC I Available Distribution Amount shall be
distributed to the REMIC I Regular Interests and the Class R
Certificates in respect of Component I thereof in the following
amounts and priority:
(a)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-1:
|
|
(i)
first, to Class Y-1 and Class Z-1 Regular Interests and
Component I of the Class R Certificates, concurrently,
the Uncertificated Interest for such Classes remaining unpaid from
previous Distribution Dates, pro rata according to their respective
shares of such unpaid amounts;
|
|
|
(ii)
second, to the Class Y-1 and Class Z-1 Regular Interests and
Component I of the Class R Certificates, concurrently, the
Uncertificated Interest for such Classes for the current
Distribution Date, pro rata according to their respective
Uncertificated Interest;
|
|
|
(iii)
third, to Component I of the Class R Certificates, until the
Uncertificated Principal Balance thereof has been reduced to zero;
and
|
|
|
(iv)
fourth, to the Class Y-1 and Class Z-1 Regular Interests, the Class
Y-1 Principal Distribution Amount and the Class Z-1 Principal
Distribution Amount, respectively.
|
(b)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-2:
|
|
(i)
first, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes
remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid
amounts;
|
|
|
(ii)
second, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
|
|
|
(iii)
third, to the Class Y-2 and Class Z-2 Regular Interests, the Class
Y-2 Principal Distribution Amount and the Class Z-2 Principal
Distribution Amount, respectively.
|
(c)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-3:
|
|
(i)
first, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes
remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid
amounts;
|
|
|
(ii)
second, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
|
|
|
(iii)
third, to the Class Y-3 and Class Z-3 Regular Interests, the Class
Y-3 Principal Distribution Amount and the Class Z-3 Principal
Distribution Amount, respectively.
|
(d)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-4:
|
|
(i)
first, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes
remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid
amounts;
|
|
|
(ii)
second, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
|
|
|
(iii)
third, to the Class Y-4 and Class Z-4 Regular Interests, the Class
Y-4 Principal Distribution Amount and the Class Z-4 Principal
Distribution Amount, respectively.
|
(e)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-5:
|
|
(i)
first, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes
remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid
amounts;
|
|
|
(ii)
second, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
|
|
|
(iii)
third, to the Class Y-5 and Class Z-5 Regular Interests, the Class
Y-5 Principal Distribution Amount and the Class Z-5 Principal
Distribution Amount, respectively.
|
(f)
To the extent of the REMIC I Available Distribution Amount for
Loan Group II-6:
|
|
(i)
first, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes
remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid
amounts;
|
|
|
(ii)
second, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
|
|
|
(iii)
third, to the Class Y-6 and Class Z-6 Regular Interests, the Class
Y-6 Principal Distribution Amount and the Class Z-6 Principal
Distribution Amount, respectively.
|
(g)
To the extent of the REMIC I Available Distribution Amounts
for Loan Group II-1, Loan Group II-2, Loan Group II-3, Loan Group
II-4, Loan Group II-5 and Loan Group II-6 for such Distribution
Date remaining after payment of the amounts pursuant to paragraphs
(a), (b), (c), (d), (e) and (f) of this definition of
“REMIC I Distribution Amount”:
|
|
(i)
first, to each Class of Class Y and Class Z Regular Interests, pro
rata according to the amount of unreimbursed Realized Losses
allocable to principal previously allocated to each such Class;
provided, however, that any amounts distributed pursuant to this
paragraph (d)(i) of this definition of “REMIC I
Distribution Amount” shall not cause a reduction in the
Uncertificated Principal Balances of any of the Class Y and Class Z
Regular Interests; and
|
|
|
(ii)
second, to the Component I of the Class R Certificates, the
Residual Distribution Amount for Component I of the Class R
Certificates for such Distribution Date.
|
REMIC I Interests : The REMIC I Regular Interests
and Component I of the Class R Certificates.
REMIC I Regular Interest : Any of the separate
non-certificated beneficial ownership interests in REMIC I set
forth in Section 5.01(c)(i) and issued hereunder and
designated as a “regular interest” in REMIC I.
Each REMIC I Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC I
Interest in Section 5.01(c)(i), and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c)(i). The
designations for the respective REMIC I Regular Interests are
set forth in Section 5.01(c)(i).
REMIC II : The segregated pool of assets, with respect to
which a REMIC election is made pursuant to this Agreement,
consisting of: (a)the Group I Mortgage Loans and the related
Mortgage Files and collateral securing such Group I Mortgage Loans,
(b) all payments on and collections in respect of the Group I
Mortgage Loans due after the Cut off Date as shall be on deposit in
the Master Servicer Collection Account or in the Distribution
Account and identified as belonging to the Trust Fund, (c) property
that secured a Group I Mortgage Loan and that has been acquired for
the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure, (d) the hazard insurance policies and Primary
Mortgage Insurance Policies, if any, related to the Group I
Mortgage Loans and (e) all proceeds of clauses (a) through (d)
above.
REMIC II Available Distribution Amount : For any
Distribution Date, the Available Funds for Loan Group
II.
REMIC II Distribution Amount : For any Distribution Date,
the REMIC II Available Distribution Amount shall be distributed by
REMIC II to REMIC IV on account of the REMIC II
Regular Interests and to the Class R Certificates in respect of
Component II thereof, in the following order of
priority:
1.
to REMIC IV as the holder of REMIC II Regular Interest LT1,
REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 and
REMIC II Regular Interest LT4, pro rata, in an amount equal to (A)
their Uncertificated Accrued Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates; and
2.
on each Distribution Date, to REMIC IV as the holder of the REMIC
II Regular Interests, in an amount equal to the remainder of the
REMIC II Available Distribution Amount after the distributions made
pursuant to clause (i) above, allocated as follows:
|
|
(A)
in respect of the REMIC I Regular Interest LT2, REMIC I Regular
Interest LT3 and REMIC I Regular Interest LT4, their respective
Principal Distribution Amounts;
|
|
|
(B)
in respect of the REMIC I Regular Interest LT1 any remainder until
the Uncertificated Principal Balance thereof is reduced to
zero;
|
|
|
(C)
any remainder in respect of the REMIC I Regular Interest LT2, REMIC
I Regular Interest LT3 and REMIC I Regular Interest LT4, pro rata
according to their respective Uncertificated Principal Balances as
reduced by the distributions deemed made pursuant to (i) above,
until their respective Uncertificated Principal Balances are
reduced to zero; and
|
|
|
(D)
any remaining amounts to the Holders of the Class R
Certificates in respect of Component II thereof.
|
REMIC II Interests : The REMIC II Regular Interests and
Component II of the Class R Certificates.
REMIC II Principal Reduction Amounts : For any
Distribution Date, the amounts by which the principal balances of
the REMIC II Regular Interests LT1, LT2, LT3 and LT4,
respectively, will be reduced on such Distribution Date by the
allocation of Realized Losses and the distribution of principal,
determined as follows:
For
purposes of the succeeding formulas the following symbols shall
have the meanings set forth below:
Y
1 = the principal balance of the REMIC II Regular
Interest LT1 after distributions on the prior Distribution
Date.
Y
2 = the principal balance of the REMIC II Regular
Interest LT2 after distributions on the prior Distribution
Date.
Y
3 = the principal balance of the REMIC II Regular
Interest LT3 after distributions on the prior Distribution
Date.
Y
4 = the principal balance of the REMIC II Regular
Interest LT4 after distributions on the prior Distribution Date
(note: Y 3 = Y 4 ).
ΔY
1 = the REMIC II Regular Interest LT1 Principal
Reduction Amount.
ΔY
2 = the REMIC II Regular Interest LT2 Principal
Reduction Amount.
ΔY
3 = the REMIC II Regular Interest LT3 Principal
Reduction Amount.
ΔY
4 = the REMIC II Regular Interest LT4 Principal
Reduction Amount.
P
0 = the aggregate principal balance of the REMIC II
Regular Interests LT1, LT2, LT3 and LT4 after distributions and the
allocation of Realized Losses on the prior Distribution
Date.
P
1 = the aggregate principal balance of the REMIC II
Regular Interests LT1, LT2, LT3 and LT4 after distributions and the
allocation of Realized Losses to be made on such Distribution
Date.
ΔP
= P 0 — P 1 = the aggregate of the
REMIC II Regular Interests LT1, LT2, LT3 and LT4 Principal
Reduction Amounts.
=
the aggregate of the principal portions of Realized Losses to be
allocated to, and the principal distributions to be made on, the
Group I Certificates on such Distribution Date (including
distributions of accrued and unpaid interest on the Class SB-I
Certificates for prior Distribution Dates).
R
0 = the Group I Net WAC Cap Rate (stated as a monthly
rate) after giving effect to amounts distributed and Realized
Losses allocated on the prior Distribution Date.
R
1 = the Group I Net WAC Cap Rate (stated as a monthly
rate) after giving effect to amounts to be distributed and Realized
Losses to be allocated on such Distribution Date.
α= (Y 2 + Y 3 )/P 0 . The
initial value of α on the Closing Date for use on the first
Distribution Date shall be 0.0001.
γ
0 = the lesser of (A) the sum for all Classes of Group I
Certificates, other than the Class B-IO Certificates, of the
product for each Class of (i) the monthly interest rate (as limited
by the Group I Net WAC Cap Rate, if applicable) for such
Class applicable for distributions to be made on such
Distribution Date and (ii) the aggregate Certificate Principal
Balance for such Class after distributions and the allocation
of Realized Losses on the prior Distribution Date and (B) R
0 *P 0 .
γ
1 = the lesser of (A) the sum for all Classes of Group I
Certificates, other than the Class B-IO Certificates, of the
product for each Class of (i) the monthly interest rate (as limited
by the Net WAC Cap Rate, if applicable) for such
Class applicable for distributions to be made on the next
succeeding Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and the
allocation of Realized Losses to be made on such Distribution Date
and (B) R 1 *P 1 .
Then,
based on the foregoing definitions:
ΔY
1 =ΔP —ΔY 2 —ΔY
3 — ΔY 4 ;
ΔY
2 = (α/2){( γ 0 R 1
— γ 1 R 0 )/R 0 R
1 };
ΔY
3 = αΔP — ΔY 2 ;
and
ΔY
4 = ΔY 3 .
if
both ΔY 2 and ΔY 3 , as so
determined, are non-negative numbers.
Otherwise:
(1)
If ΔY 2 , as so determined, is negative,
then
ΔY
2 = 0;
ΔY
3 = α{γ 1 R 0 P
0 — γ 0 R 1 P
1 }/{γ 1 R 0 };
ΔY
4 = ΔY 3 ; and
ΔY
1 = ΔP — ΔY 2 — ΔY
3 — ΔY 4 .
(2)
If ΔY 3 , as so determined, is negative,
then
ΔY
3 = 0;
ΔY
2 = α{γ 1 R 0 P
0 — γ 0 R 1 P
1 }/{2R 1 R 0 P 1
— γ 1 R 0 };
ΔY
4 = ΔY 3 ; and
ΔY
1 = ΔP — ΔY 2 — ΔY
3 — ΔY 4 .
REMIC II Realized Losses : For any Distribution Date,
Realized Losses on the Group I Mortgage Loans for the related Due
Period shall be allocated, as follows: (i) the interest portion of
Realized Losses, if any, shall be allocated pro rata to accrued
interest on the REMIC II Regular Interests to the extent of
such accrued interest, and (ii) any remaining interest portions of
Realized Losses and any principal portions of Realized Losses shall
be treated as principal portions of Realized Losses and allocated
(i) to the REMIC II Regular Interest LT2, REMIC II
Regular Interest LT3 and REMIC II Regular Interest LT4, pro
rata according to their respective Principal Reduction Amounts,
provided that such allocation to each of the REMIC II Regular
Interest LT2, REMIC II Regular Interest LT3 and REMIC II
Regular Interest LT4 shall not exceed their respective Principal
Reduction Amounts for such Distribution Date, and (ii) any Realized
Losses not allocated to any of REMIC II Regular Interest LT2,
REMIC II Regular Interest LT3 or REMIC II Regular
Interest LT4 pursuant to the proviso of clause (i) above shall be
allocated to the REMIC II Regular Interest LT1.
REMIC II Regular Interest : Any of the separate
non-certificated beneficial ownership interests in REMIC II
set forth in Section 5.01(c)(ii) and issued hereunder and
designated as a “regular interest” in REMIC II.
Each REMIC II Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC II
Interest in Section 5.01(c)(ii), and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c)(ii). The
designations for the respective REMIC II Regular Interests are
set forth in Section 5.01(c)(ii).
REMIC II Regular Interest LT1 : A regular interest in
REMIC II that is held as an asset of REMIC III, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT1 Principal Distribution
Amount : For any Distribution Date, the excess, if any, of the
REMIC II Regular Interest LT1 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to the
REMIC II Regular Interest LT1 on such Distribution
Date.
REMIC II Regular Interest LT2 : A regular interest in
REMIC II that is held as an asset of REMIC III, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT2 Principal Distribution
Amount : For any Distribution Date, the excess, if any, of the
REMIC II Regular Interest LT2 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to the
REMIC II Regular Interest LT2 on such Distribution
Date.
REMIC II Regular Interest LT3 : A regular interest in
REMIC II that is held as an asset of REMIC III, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT3 Principal Distribution
Amount : For any Distribution Date, the excess, if any, of the
REMIC II Regular Interest LT3 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to the
REMIC II Regular Interest LT3 on such Distribution
Date.
REMIC II Regular Interest LT4 : A regular interest in
REMIC II that is held as an asset of REMIC III, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT4 Principal Distribution
Amount : For any Distribution Date, the excess, if any, of the
REMIC II Regular Interest LT4 Principal Reduction Amount for
such Distribution Date over the Realized Losses allocated to the
REMIC II Regular Interest LT4 on such Distribution
Date.
REMIC III : That group of assets contained in the Trust Fund
designated as a REMIC consisting of the REMIC I Regular Interests
and any proceeds thereof.
REMIC III Available Distribution Amount : For any
Distribution Date, the amounts deemed distributed with respect to
the REMIC I Regular Interests pursuant to Section 6.07.
REMIC III Distribution Amount : For any Distribution Date,
the REMIC III Available Distribution Amount shall be distributed by
REMIC III to REMIC IV on account of the REMIC III Regular Interests
and to the Class R Certificates in respect of Component III
thereof, as follows: to each REMIC III Regular Interest in respect
of Uncertificate Accrued Interest thereon and the Uncertificated
Principal Balance thereof, the amount distributed in respect of
interest and principal on the Related Class or Classes of
Certificates (with such amounts having the same character as
interest or principal with respect to the REMIC III Regular
Interest as they have with respect to the Related Certificate or
Certificates) with the following exception: No amount paid to any
Certificate in respect of any Basis Risk Shortfall Amount or Basis
Risk Shortfall Carryforward Amount shall be included in the amount
paid in respect of a related REMIC III Regular Interest. Any
remaining amount of the REMIC III Available Distribution Amount
shall be distributed to the holders of the Class R Certificates in
respect of Component III thereof.
REMIC III Interests : The REMIC III Regular Interests and
Component III of the Class R Certificates.
REMIC III Regular Interest : Any of the separate
non-certificated beneficial ownership interests in REMIC III
set forth in Section 5.01(c)(iii) and issued hereunder and
designated as a “regular interest” in REMIC III.
Each REMIC III Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC III
Interest in Section 5.01(c)(iii), and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c)(iii). The
designations for the respective REMIC III Regular Interests
are set forth in Section 5.01(c)(iii).
.
REMIC IV : That group of assets contained in the Trust Fund
designated as a REMIC consisting of the REMIC II Regular Interests,
the REMIC III Regular Interests and any proceeds
thereof.
REMIC IV Available Distribution Amount : For any
Distribution Date, the amounts deemed distributed with respect to
the REMIC II Regular Interests and REMIC III Regular Interests
pursuant to Section 6.07.
REMIC IV Distribution Amount : For any Distribution Date,
the REMIC IV Available Distribution Amount shall be deemed
distributed by REMIC IV to the holders of the Certificates (other
than the Class B-IO Certificates) on account of the REMIC IV
Regular Interests (other than REMIC IV Regular Interests B-IO-I and
B-IO-P), to REMIC V on account of REMIC IV Regular Interests B-IO-I
and B-IO-P, and to the Class R Certificates in respect of Component
IV thereof, as follows: to each REMIC IV Regular Interest in
respect of Uncertificate Accrued Interest thereon and the
Uncertificated Principal Balance thereof, the amount distributed in
respect of interest and principal on the Related Class or Classes
of Certificates (with such amounts having the same character as
interest or principal with respect to the REMIC IV Regular Interest
as they have with respect to the Related Certificate or
Certificates) with the following exceptions: (1) No amount paid to
any Certificate in respect of any Basis Risk Shortfall Amount or
Basis Risk Shortfall Carryforward Amount shall be included in the
amount paid in respect of a related REMIC IV Regular Interest. (2)
Amounts paid in respect of Basis Risk Shortfall Amounts and Basis
Risk Shortfall Carryforward Amounts to the extent not derived from
any Cap Contract Amount shall be deemed paid with respect to REMIC
IV Regular Interest B-IO-I in respect of accrued and unpaid
interest thereon. Any remaining amount of the REMIC IV Available
Distribution Amount shall be distributed to the holders of the
Class R Certificates in respect of Component IV thereof.
REMIC IV Interests : The REMIC IV Regular Interests and
Component IV of the Class R Certificates.
REMIC IV Regular Interest : Any of the separate
non-certificated beneficial ownership interests in REMIC IV
set forth in Section 5.01(c)(iv) and issued hereunder and
designated as a “regular interest” in REMIC IV.
Each REMIC IV Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC IV
Interest in Section 5.01(c)(iv), and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c)(iv). The
designations for the respective REMIC IV Regular Interests are
set forth in Section 5.01(c)(iv).
.
REMIC V : That group of assets contained in the Trust Fund
designated as a REMIC consisting of REMIC IV Regular Interests
B-IO-I and B-IO-P and any proceeds thereof.
REMIC V Available Distribution Amount : For any Distribution
Date, the amounts deemed distributed with respect to REMIC IV
Regular Interests B-IO-I and B-IO-P pursuant to Section
6.07.
REMIC V Distribution Amount : For any Distribution Date, the
REMIC V Available Distribution Amount shall be deemed distributed
by REMIC V to the holder of the Class B-IO Certificates on account
of REMIC IV Regular Interests B-IO-I and B-IO-P.
REMIC V Interests : The REMIC V Regular Interest and the
Class R-X Certificates.
REMIC V Regular Interest : The separate non-certificated
beneficial ownership interest in REMIC V set forth in
Section 5.01(c)(v) and issued hereunder and designated as a
“regular interest” in REMIC V. The REMIC V
Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC V Interest in
Section 5.01(c)(v). The designation for the REMIC V
Regular Interest is set forth in
Section 5.01(c)(v).
REO Property : A Mortgaged Property acquired in the name of
the Trustee, for the benefit of Certificateholders, by foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Repurchase Price : With respect to any Mortgage Loan (or any
property acquired with respect thereto) required to be repurchased
by the Seller pursuant to the Mortgage Loan Purchase Agreement or
Article II of this Agreement, an amount equal to the excess of (i)
the sum of (a) 100% of the Outstanding Principal Balance of such
Mortgage Loan as of the date of repurchase (or if the related
Mortgaged Property was acquired with respect thereto, 100% of the
Outstanding Principal Balance at the date of the acquisition), (b)
accrued but unpaid interest on the Outstanding Principal Balance at
the related Mortgage Interest Rate, through and including the last
day of the month of repurchase and (c) any costs and damages (if
any) incurred by the Trust in connection with any violation of such
Mortgage Loan of any predatory or abusive lending laws over (ii)
any portion of the Master Servicing Compensation, Monthly Advances
and advances payable to the purchaser of the Mortgage
Loan.
Repurchase Proceeds : the Repurchase Price in connection
with any repurchase of a Mortgage Loan by the Seller and any cash
deposit in connection with the substitution of a Mortgage
Loan.
Request for Release : A request for release in the form
attached hereto as Exhibit D.
Required Insurance Policy : With respect to any Mortgage
Loan, any insurance policy which is required to be maintained from
time to time under this Agreement with respect to such Mortgage
Loan.
Reserve Fund : The separate trust account created and
maintained by the Trustee pursuant to Section 4.06
hereof.
Residual Certificate : Any of the Class R Certificates,
consisting of four components—Component I,
Component II, Component III and
Component IV—respectively representing ownership of the
sole class of residual interest in each of REMIC I, REMIC II, REMIC
III and REMIC IV, and the Class R-X Certificates.
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.
Rolling Three-Month Delinquency Average : With respect to a
Distribution Date, the average of the Monthly Delinquency
Percentages for that Distribution Date and each of the immediately
preceding two Distribution Dates.
Rule 144A Certificate : 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-2 hereto.
S&P : Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and its successors in
interest.
Scheduled Payment : With respect to any Mortgage Loan and
any Due Period, the scheduled payment or payments of principal and
interest due during such Due Period on such Mortgage Loan which
either is payable by a Mortgagor in such Due Period under the
related Mortgage Note or, in the case of REO Property, would
otherwise have been payable under the related Mortgage
Note.
Scheduled Principal : The principal portion of any Scheduled
Payment.
Securities Act : The Securities Act of 1933, as
amended.
Securities Administrator : Wells Fargo Bank, National
Association, or its successor in interest, or any successor
securities administrator appointed as herein provided.
Securities Legend : “THIS CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A (A “QIB”), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR (2) IN CERTIFICATED FORM TO AN “INSTITUTIONAL
ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY
ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B)
THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
(A “PLAN”) THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”), OR BY A PERSON USING “PLAN ASSETS”
OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE TRUSTEE WITH
AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER
SERVICER AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY
RELY WHICH IS SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
MASTER SERVICER, THE TRUSTEE OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
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 : EMC, as mortgage loan seller under the Mortgage
Loan Purchase Agreement.
Senior Certificates : The Class I-A-1, Class II-A-1, Class
II-A-2a, Class II-A-2b, Class II-A-3, Class II-A-4, Class II-X-4,
Class II-A-5, Class II-X-5 and Class II-A-6
Certificates.
Senior Enhancement Percentage : As to each Distribution
Date, the percentage equivalent of a fraction, the numerator of
which is the sum of (i) the aggregate of the Certificate Principal
Balance of the Class I-M-1, Class I-M-2, Class I-B-1, Class I-B-2
and Class I-B-3 Certificates and (ii) the Overcollateralization
Amount, in each case after taking into account the distribution of
the related Principal Distribution Amounts on such Distribution
Date, and the denominator of which is the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such
Distribution Date .
Senior Optimal Principal Amount : With respect to each
Distribution Date and a Certificate Group related to a Loan Group
in Loan Group II, an amount equal to the sum, without duplication,
of the following (but in no event greater than the aggregate
Certificate Principal Balances of the related Certificate Group
immediately prior to such Distribution Date):
|
|
(i)
the related Senior Percentage of the principal portion of all
Scheduled Payments due on each Outstanding Mortgage Loan in the
related Loan Group on the related Due Date as specified in the
amortization schedule at the time applicable thereto (after
adjustments for previous Principal Prepayments but before any
adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period if the related Distribution Date occurs
prior to the Cross-over Date);
|
|
|
(ii)
the related Senior Prepayment Percentage of the Stated Principal
Balance of Mortgage Loan in the related Loan Group which was the
subject of a Principal Prepayment in full received by the Master
Servicer during the related Prepayment Period;
|
|
|
(iii)
the related Senior Prepayment Percentage of amount of all Principal
Prepayments in part allocated to principal received by the Master
Servicer during the related Prepayment Period in respect to each
Mortgage Loan in the related Loan Group;
|
|
|
(iv)
the lesser of (a) the related Senior Prepayment Percentage of the
sum of (A) all Net Liquidation Proceeds allocable to principal
received in respect of each Mortgage Loan in the related Loan Group
that became a Liquidated Mortgage Loan during the related
Prepayment Period (other than Mortgage Loans described in the
immediately following clause (B)) and all Subsequent Recoveries
received in respect of each Liquidated Mortgage Loan in the related
Loan Group during the related Due Period and (B) the Stated
Principal Balance of each such Mortgage Loan purchased by an
insurer from the Trust during the related Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any,
or otherwise and (b) the related Senior Percentage of the sum of
(A) the Stated Principal Balance of each Mortgage Loan in the
related Loan Group which became a Liquidated Mortgage Loan during
the related Prepayment Period (other than the Mortgage Loans
described in the immediately following clause (B)) and all
Subsequent Recoveries received in respect of each Liquidated
Mortgage Loan in the related Loan Group during the related Due
Period and (B) the Stated Principal Balance of each such Mortgage
Loan that was purchased by an insurer from the Trust during the
related Prepayment Period pursuant to the related Primary Mortgage
Insurance Policy, if any or otherwise;
|
|
|
(v)
any amount allocated to the Available Funds of the related Loan
Group pursuant to Section 6.01.2(a)(H); and
|
|
|
(vi)
the related Senior Prepayment Percentage of the sum of (a) the
Stated Principal Balance of each Mortgage Loan in the related Loan
Group that was repurchased by the Seller in connection with such
Distribution Date and (b) the excess, if any, of the Stated
Principal Balance of a Mortgage Loan in the related Loan Group that
has been replaced by the Seller with a substitute Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement in connection with
such Distribution Date over the Stated Principal Balance of such
substitute Mortgage Loan.
|
Senior Percentage : With respect to each Certificate Group
related to a Loan Group in Loan Group II, initially 94.35%. With
respect to any Distribution Date and a Certificate Group related to
a Loan Group in Loan Group II, the lesser of (i) 100% and
(ii) the percentage obtained by dividing the aggregate
Certificate Principal Balance of the Senior Certificates in such
Certificate Group immediately preceding such Distribution Date by
the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group as of the beginning of the related Due
Period.
Senior Prepayment Percentage : With respect to a Certificate
Group related to a Loan Group in Loan Group II and any Distribution
Date occurring during the periods set forth below, as
follows:
|
Period (dates inclusive)
|
|
Senior Prepayment Percentage
|
|
March 2005 -
February 2012
|
|
100%
|
|
March 2012 -
February 2013
|
|
Senior
Percentage for the related Certificate Group
plus 70% of the Subordinate Percentage for
the related Loan Group.
|
|
March 2013 -
February 2014
|
|
Senior
Percentage for the related Certificate Group
plus 60% of the Subordinate Percentage for
the related Loan Group.
|
|
March 2014 -
February 2015
|
|
Senior
Percentage for the related Certificate Group
plus 40% of the Subordinate Percentage for
the related Loan Group.
|
|
March 2015 -
February 2016
|
|
Senior
Percentage for the related Certificate Group
plus 20% of the Subordinate Percentage for
the related Loan Group.
|
|
March 2016 and
thereafter
|
|
Senior
Percentage for the related Certificate Group
|
In
addition, no reduction of the Senior Prepayment Percentage shall
occur on any Distribution Date unless, as of the last day of the
month preceding such Distribution Date, (A) the aggregate Stated
Principal Balance of the Group II Mortgage Loans in all Loan Groups
in Loan Group II delinquent 60 days or more (including for this
purpose any such Group II Mortgage Loans in foreclosure and Group
II Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Trust), averaged over the last
six months, as a percentage of the sum of the aggregate Certificate
Principal Balance of the Group II Subordinate Certificates does not
exceed 50%; and (B) cumulative Realized Losses on the Group II
Mortgage Loans in all Loan Groups in Loan Group II do not exceed
(a) 30% of the Original Group II Subordinate Principal Balance if
such Distribution Date occurs between and including March 2012 and
February 2013, (b) 35% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs between and
including March 2013 and February 2014, (c) 40% of the Original
Group II Subordinate Principal Balance if such Distribution Date
occurs between and including March 2014 and February 2015, (d) 45%
of the Original Group II Subordinate Principal Balance if such
Distribution Date occurs between and including March 2015 and
February 2016, and (e) 50% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs during or after
March 2016.
In
addition, if on any Distribution Date the weighted average of the
Subordinate Percentages is equal to or greater than two times the
weighted average of the initial Subordinate Percentages, and (a)
the aggregate Stated Principal Balance of the Group II Mortgage
Loans for all Loan Groups delinquent 60 days or more (including for
this purpose any such Mortgage Loans in foreclosure and such Group
II Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Trust), averaged over the last
six months, as a percentage of the aggregate Certificate Principal
Balance of the Group II Subordinate Certificates does not exceed
50% and (b)(i) on or prior to the Distribution Date in
February 2008, cumulative Realized Losses on the Group II Mortgage
Loans for all Loan Groups in Loan Group II as of the end of the
related Prepayment Period do not exceed 20% of the Original Group
II Subordinate Principal Balance and (ii) after the
Distribution Date in February 2008 cumulative Realized Losses on
the Group II Mortgage Loans for all Loan Groups in Loan Group II as
of the end of the related Prepayment Period do not exceed 30% of
the Original Group II Subordinate Principal Balance, then, the
Senior Prepayment Percentage for such Distribution Date will equal
the Senior Percentage for the related Loan Group; provided,
however, if on such Distribution Date the Subordinate Percentage is
equal to or greater than two times the initial Subordinate
Percentage on or prior to the Distribution Date occurring in
February 2008 and the above delinquency and loss tests are met,
then the Senior Prepayment Percentage for the related Loan Group
for such Distribution Date will equal the related Senior Percentage
plus 50% of the related Subordinate Percentage.
Notwithstanding
the foregoing, if on any Distribution Date the percentage, the
numerator of which is the aggregate Certificate Principal Balance
of the Group II Senior Certificates immediately preceding such
Distribution Date, and the denominator of which is the Stated
Principal Balance of the Group II Mortgage Loans as of the
beginning of the related Due Period, exceeds such percentage as of
the Cut-Off Date, the Senior Prepayment Percentage for the Senior
Certificates will equal 100%.
Servicers : Bank of America, Cendant, Countrywide Servicing,
EMC, EverHome, GMACM, GreenPoint, HomeBanc, Waterfield and Wells
Fargo and their respective permitted successors and
assigns.
Servicer Remittance Date : With respect to each Mortgage
Loan, the date set forth in the Servicing Agreement.
Servicing Agreement : Each of the Bank of America Servicing
Agreement, Cendant Servicing Agreement, Countrywide Servicing
Agreement, EMC Servicing Agreement, EverHome Servicing Agreement,
HomeBanc Servicing Agreement, GMACM Servicing Agreement, GreenPoint
Servicing Agreement, Waterfield Servicing Agreement and Wells Fargo
Servicing Agreement.
Servicing Fee : As to any Mortgage Loan and Distribution
Date, an amount equal to the product of (i) the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the
preceding calendar month and (ii) the Servicing Fee
Rate.
Servicing Fee Rate : As to any Mortgage Loan, a per annum
rate as set forth in the Mortgage Loan Schedule.
Servicing Officer : The President or a Vice President or
Assistant Vice President or other authorized officer of the Master
Servicer having direct responsibility for the administration of
this Agreement, and any other authorized officer of the Master
Servicer to whom a matter arising hereunder may be
referred.
Special Hazard Loss : A Realized Loss attributable to damage
or a direct physical loss suffered by a mortgaged property
(including any Realized Loss due to the presence or suspected
presence of hazardous wastes or substances on a mortgaged property)
other than any such damage or loss covered by a hazard policy or a
flood insurance policy required to be maintained in respect of such
mortgaged property under the Agreement or any loss due to normal
wear and tear or certain other causes.
Startup Day : February 28, 2005.
Stated Principal Balance : With respect to any Group I
Mortgage Loan or related REO Property and any Distribution Date,
the Outstanding Principal Balance thereof as of the Cut-off Date
minus the sum of (i) the principal portion of the Scheduled
Payments due with respect to such Mortgage Loan during each Due
Period ending prior to such Distribution Date (and irrespective of
any delinquency in their payment), (ii) all Principal Prepayments
with respect to such Mortgage Loan received prior to or during the
related Prepayment Period, and all Liquidation Proceeds to the
extent applied by the related Servicer as recoveries of principal
in accordance with this Agreement or the applicable Servicing
Agreement with respect to such Mortgage Loan, that were received by
the related Servicer as of the close of business on the last day of
the Prepayment Period related to such Distribution Date and (iii)
any Realized Losses on such Mortgage Loan incurred prior to or
during the related Prepayment Period. The Stated Principal Balance
of a Liquidated Mortgage Loan equals zero. References herein to the
Stated Principal Balance of a Loan Group at any time shall mean the
aggregate Stated Principal Balance of all Mortgage Loans in such
Loan Group.
With
respect to any Group II Mortgage Loan on any Distribution Date,
(i) the unpaid principal balance of such Mortgage Loan as of
the close of business on the related Due Date (taking account of
the principal payment to be made on such Due Date and irrespective
of any delinquency in its payment), as specified in the
amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding occurring after the Cut-off Date
(other than a Deficient Valuation) or any moratorium or similar
waiver or grace period) and less (ii) any Principal
Prepayments (including the principal portion of Net Liquidation
Proceeds) received during or prior to the related Prepayment
Period; provided that the Stated Principal Balance of a Liquidated
Mortgage Loan is zero.
Stepdown Date : The earlier to occur of (i) the Distribution
Date on which the Certificate Principal Balance of the Class I-A-1
Certificates has been reduced to zero and (ii) the later to occur
of (a) the Distribution Date in March 2008 and (b) the first
Distribution Date on which the sum of the aggregate Certificate
Principal Balance of the Class I-M-1, Class I-M-2, Class I-B-1 and
Class I-B-2 Certificates and the Overcollateralization Amount
divided by the Stated Principal Balance of the Mortgage Loans for
such Distribution Date is greater than or equal to
15.40%.
Subordinate Certificate Writedown Amount : With respect to
the Group II Subordinate Certificates and as to any Distribution
Date, the amount by which (i) the sum of the Certificate Principal
Balances of the Group II Certificates (after giving effect to the
distribution of principal and the allocation of applicable Realized
Losses in reduction of the Certificate Principal Balances of the
Group II Certificates on such Distribution Date) exceeds (y) the
aggregate Stated Principal Balances of the Group II Mortgage Loans
on the Due Date related to such Distribution Date.
Subordinate Certificates : The Group I Subordinate
Certificates and the Group II Subordinate Certificates.
Subordinate Optimal Principal Amount : With respect to any
Distribution Date and any Loan Group in Loan Group II, an amount
equal to the sum, without duplication, of the following (but in no
event greater than the aggregate Certificate Principal Balance of
the Group II Subordinate Certificates immediately prior to such
Distribution Date):
|
|
(i)
the related Subordinate Percentage of the principal portion of all
Scheduled Payments due on each Outstanding Mortgage Loan in the
related Loan Group on the related Due Date as specified in the
amortization schedule at the time applicable thereto (after
adjustment for previous Principal Prepayments but before any
adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period);
|
|
|
(ii)
the related Subordinate Prepayment Percentage of the Stated
Principal Balance of each Mortgage Loan in the related Loan Group
that was the subject of a Principal Prepayment in full received by
the Master Servicer during the related Prepayment
Period;
|
|
|
(iii)
the related Subordinate Prepayment Percentage of the amount of all
Principal Prepayments in part received by the Master Servicer in
respect to the Mortgage Loan in the related Loan Group during the
related Prepayment Period;
|
|
|
(iv)
the excess, if any, of (a) all Net Liquidation Proceeds allocable
to principal received during the related Prepayment Period in
respect of each Liquidated Mortgage Loan in the related Loan Group
and all Subsequent Recoveries received in respect of each
Liquidated Mortgage Loan during the related Due Period over (b) the
sum of the amounts distributable to the Senior Certificates in the
related Certificate Group pursuant to clause (iv) of the definition
of Senior Optimal Principal Amount on such Distribution
Date;
|
|
|
(v)
the related Subordinate Prepayment Percentage of the sum of (a) the
Stated Principal Balance of each Mortgage Loan in the related Loan
Group that was purchased by the Seller in connection with such
Distribution Date and (b) the difference, if any, between the
Stated Principal Balance of a Mortgage Loan in the related Loan
Group that has been replaced by the Seller with a Substitute
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement in
connection with such Distribution Date over the Stated Principal
Balance of such Substitute Mortgage Loan; and
|
|
|
(vi)
on the Distribution Date on which the Certificate Principal
Balances of the Senior Certificates in the related Certificate
Group have all been reduced to zero, 100% of the Senior Optimal
Principal Amount for the related Loan Group. After the aggregate
Certificate Principal Balance of the Subordinate Certificates has
been reduced to zero, the Subordinate Optimal Principal Amount
shall be zero.
|
Subordinate Percentage : With respect to a Loan Group
included in Loan Group II on any Distribution Date, 100% minus the
Senior Percentage for the related Certificate Group.
Subordinate Prepayment Percentage : With respect to a Loan
Group on any Distribution Date, 100% minus the Senior Prepayment
Percentage for the related Certificate Group.
Subsequent Recoveries : As of any Distribution Date, amounts
received during the related Due Period by the Master Servicer (net
of any related expenses permitted to be reimbursed pursuant to
Section 4.03) or surplus amounts held by the Master Servicer to
cover estimated expenses (including, but not limited to, recoveries
in respect of the representations and warranties made by the Seller
pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a Liquidated Mortgage Loan or the disposition of an REO
Property prior to the related Prepayment Period that resulted in a
Realized Loss, after liquidation or disposition of such Mortgage
Loan.
Substitute Mortgage Loan : A mortgage loan tendered to the
Trustee pursuant to the related Servicing Agreement, the Mortgage
Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in each case, (i) which has an Outstanding
Principal Balance not greater nor materially less than the Mortgage
Loan for which it is to be substituted; (ii) which has a
Mortgage Interest Rate and Net Rate not less than, and not
materially greater than, such Mortgage Loan; (iii) which has a
maturity date not materially earlier or later than such Mortgage
Loan and not later than the latest maturity date of any Mortgage
Loan; (iv) which is of the same property type and occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater
than the Loan-to-Value Ratio of such Mortgage Loan; (vi) which
is current in payment of principal and interest as of the date of
substitution; (vii) as to which the payment terms do not vary
in any material respect from the payment terms of the Mortgage Loan
for which it is to be substituted and (viii) which has a Gross
Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate no
less than those of such Mortgage Loan, has the same Index and
interval between Interest Adjustment Dates as such Mortgage Loan,
and a Minimum Lifetime Mortgage Rate no lower than that of such
Mortgage Loan.
Substitution Adjustment Amount : The amount, if any,
required to be paid by the Mortgage Loan Seller to the Trustee for
deposit in the Distribution Account pursuant to Section 2.04 in
connection with the substitution of a Mortgage Loan.
Tax Administration and Tax Matters Person : The Securities
Administrator and any successor thereto or assignee thereof shall
serve as tax administrator hereunder and as agent for the Tax
Matters Person. The Holder of the largest percentage interest of
each Class of Residual Certificates shall be the Tax Matters Person
for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Termination Purchase Price : The price, calculated as set
forth in Section 10.01, to be paid in connection with the
repurchase of the Mortgage Loans pursuant to
Section 10.01.
Trigger Event : A Trigger Event exists with respect to a
Distribution Date on or after the Stepdown Date if either (i) the
related Rolling Three-Month Delinquency Average exceeds 50% of the
related Senior Enhancement Percentage or (ii) the percentage of the
cumulative amount of Realized Losses on the Group I Mortgage Loans
as of such date of determination is greater than the applicable
percentage listed below of the aggregate Stated Principal Balances
of the Group I Mortgage Loans as of the Closing Date:
|
Months
|
Percentage
|
|
37 - 48
|
0.75%
|
|
49 - 60
|
1.25%
|
|
61-72
|
1.50%
|
|
73+
|
1.75%
|
Trust Fund or Trust : The corpus of the trust created by
this Agreement, consisting of the Mortgage Loans and the other
assets described in Section 2.01(a).
Trustee : JPMorgan Chase Bank, National Association, or its
successor in interest, or any successor trustee appointed as herein
provided.
2005-2 REMIC : Any of REMIC I, REMIC II, REMIC III, REMIC IV
and REMIC V.
Uncertificated Interest : With respect to each REMIC Regular
Interest on each Distribution Date, an amount equal to one
month’s interest at the related Uncertificated Pass-Through
Rate on the Uncertificated Principal Balance of such REMIC Regular
Interest. In each case, for purposes of the distributions,
Uncertificated Interest will be reduced by the interest portion of
any Realized Losses and Net Interest Shortfalls allocated, with
respect to the REMIC I Regular Interests, to such REMIC Regular
Interests pursuant to the definition of Realized Losses, with
respect to the REMIC II Regular Interests, to such REMIC Regular
Interests pursuant to the definition of REMIC II Realized Losses
and, with respect to the REMIC III Regular Interests, REMIC IV
Regular Interests and REMIC V Regular Interest, to the Related
Classes of Certificates.
Uncertificated Pass-Through Rate : With respect to any
Distribution Date and REMIC Interest, the pass-through rate of each
such REMIC Interest set forth in Section 5.01(c).
Uncertificated Principal Balance : The amount of any REMIC
Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each
REMIC I Regular Interest shall equal the amount set forth in
Section 5.01(c)(i) as its Initial Uncertificated Principal Balance.
On each Distribution Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall be reduced by the sum of
(i) the principal portion of Realized Losses allocated to the
REMIC I Regular Interests in accordance with the definition of
Realized Loss and (ii) the amounts deemed distributed on each
Distribution Date in respect of principal on the REMIC I Regular
Interests pursuant to Section 6.07. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the Section
5.01(c)(ii) hereto as its Initial Uncertificated Principal Balance.
On each Distribution Date, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall be reduced, first, by the
portion of Realized Losses allocated in reduction of the
Certificate Principal Balances thereof on such Distribution Date
pursuant to the definition of REMIC II Realized Losses and, second,
the amounts deemed distributed on each Distribution Date in respect
of principal on the REMIC II Regular Interests pursuant to Section
6.07. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC III Regular Interest shall equal the amount set forth
in the Section 5.01(c)(iii) hereto as its Initial Uncertificated
Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC III Regular Interest shall be
reduced, first, by the portion of Realized Losses allocated in
reduction of the Certificate Principal Balances of the Related
Classes of Certificates on such Distribution Date and, second, by
all distributions of principal made on such Related Classes of
Certificates on such Distribution Date. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC IV Regular Interest
shall equal the amount set forth in the Section 5.01(c)(iv) hereto
as its Initial Uncertificated Principal Balance. On each
Distribution Date, the Uncertificated Principal Balance of each
REMIC IV Regular Interest shall be reduced, first, by the portion
of Realized Losses allocated in reduction of the Certificate
Principal Balances of the Related Classes of Certificates on such
Distribution Date and, second, by all distributions of principal
made on such Related Classes of Certificates on such Distribution
Date. As of the Closing Date, the Uncertificated Principal Balance
of the REMIC V Regular Interest shall equal the amount set forth in
Section 5.01(c)(v) as its Initial Uncertificated Principal
Balance.
Undercollateralized Amount : With respect any Certificate
Group in Loan Group II and Distribution Date, the excess of (i) the
aggregate Certificate Principal Balance of such Certificate Group
over (ii) the aggregate Stated Principal Balance of the Group II
Mortgage Loans in the related Loan Group.
Undercollateralized Certificate Group : With respect any
Distribution Date, a Certificate Group in Loan Group II for which
the related Undercollateralized Amount (calculated on such
Distribution Date after giving effect to distributions to be made
thereon (other than amounts to be distributed pursuant to Section
6.01.2(a)(K) on such Distribution Date)) exceeds zero.
Uninsured Cause : Any cause of damage to a Mortgaged
Property or related REO Property such that the complete restoration
of such Mortgaged Property or related REO Property is not fully
reimbursable by the hazard insurance policies required to be
maintained pursuant the Servicing Agreement, without regard to
whether or not such policy is maintained.
United States Person : A citizen or resident of the United
States, a corporation or partnership (including an entity treated
as a corporation or partnership for federal income tax purposes)
created or organized in, or under the laws of, the United States or
any state thereof or the District of Columbia (except, in the case
of a partnership, to the extent provided in regulations), provided
that, for purposes solely of the Residual Certificates, no
partnership or other entity treated as a partnership for United
States federal income tax purposes shall be treated as a United
States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a
corporation for United States federal income tax purposes are
United States Persons, or an estate whose income is subject to
United States federal income tax regardless of its source, or a
trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or
more such United States Persons have the authority to control all
substantial decisions of the trust. To the extent prescribed in
regulations by the Secretary of the Treasury, which have not yet
been issued, a trust which was in existence on August 20, 1996
(other than a trust treated as owned by the grantor under subpart E
of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect
to continue to be treated as a United States person notwithstanding
the previous sentence.
Unpaid Realized Loss Amount : With respect to any
Distribution Date and a Class of Group I Offered Certificates, is
the excess of (i) Applied Realized Loss Amounts with respect to
such Class over (ii) the sum of all distributions in reduction of
the Applied Realized Loss Amounts on all previous Distribution
Dates. Any amounts distributed to a class of Group I Offered
Certificates in respect of any Unpaid Realized Loss Amount will not
be applied to reduce the Certificate Principal Balance of such
Class.
Waterfield : Union Federal Bank of Indianapolis, and any
successor thereto.
Waterfield Servicing Agreement : Amended and Restated
Forward Commitment Flow Mortgage Loan Purchase and Servicing
Agreement dated as of March 4, 2003, between Waterfield and EMC,
attached hereto as Exhibit H-9.
Wells Fargo : Wells Fargo Bank, National Association, and
any successorthereto.
Wells Fargo Servicing Agreement : Master Seller’s
Warranties and Servicing Agreement, dated as of October 1, 2004,
between Wells Fargo and EMC, attached hereto as Exhibit
H-10.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section
2.01 Conveyance of Mortgage Loans to Trustee . (a) The
Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Trust without
recourse all its right, title and interest in and to (i) the
Mortgage Loans identified in the Mortgage Loan Schedule, including
all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms
of this Agreement to be credited to the Master Servicer Collection
Account, (iii) such assets relating to the Mortgage Loans as
from time to time may be held by the Servicers in Protected
Accounts, the Master Servicer in the Master Servicer Collection
Account and the Trustee in the Distribution Account for the benefit
of the Trustee on behalf of the Certificateholders and the Trustee
in the Cap Reserve Account for the benefit of the Trustee on behalf
of the Group I Offered Certificateholders and the Class I-B-3
Certificateholders, (iv) any REO Property, (v) the Required
Insurance Policies and any amounts paid or payable by the insurer
under any Insurance Policy (to the extent the mortgagee has a claim
thereto), (vi) the Mortgage Loan Purchase Agreement to the
extent provided in Section 2.03(a), (vii) the rights with
respect to the Servicing Agreements as assigned to the Trustee on
behalf of the Certificateholders by the Assignment Agreements,
(viii) such assets as shall from time to time be credited or are
required by the terms of this Agreement to be credited to the
Distribution Account and the Cap Reserve Account and (ix) 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 Seller
hereby deposits with the Trustee or the Custodian, as its agent,
with respect to each Mortgage Loan:
|
|
(i)
the original Mortgage Note, endorsed without recourse (A) to the
order of the Trustee or (B) in the case of a Mortgage Loan
registered on the MERS system, in blank, and in each case showing
an unbroken chain of endorsements from the originator thereof to
the Person endorsing it to the Trustee, or lost note affidavit
together with a copy of the related Mortgage Note,
|
|
|
(ii)
the original Mortgage and, if the related Mortgage Loan is a MOM
Loan, noting the presence of the MIN and language indicating that
such Mortgage Loan is a MOM Loan, which shall have been recorded
(or if the original is not available, a copy), with evidence of
such recording indicated thereon (or if clause (w) in the proviso
below applies, shall be in recordable form),
|
|
|
(iii)
unless the Mortgage Loan is a MOM Loan, a certified copy of the
assignment (which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is
located) to “JPMorgan Chase Bank, National Association, as
Trustee”, with evidence of recording with respect to each
Mortgage Loan in the name of the Trustee thereon (or if clause (w)
in the proviso below applies or for Mortgage Loans with respect to
which the related Mortgaged Property is located in a state other
than Maryland, Tennessee, South Carolina, Mississippi and Florida,
or an Opinion of Counsel has been provided as set forth in this
Section 2.01(b), shall be in recordable form),
|
|
|
(iv)
all intervening assignments of the Security Instrument, if
applicable and only to the extent available to the Depositor with
evidence of recording thereon,
|
|
|
(v)
the original or a copy of the policy or certificate of primary
mortgage guaranty insurance, to the extent available, if
any,
|
|
|
(vi)
the original policy of title insurance or mortgagee’s
certificate of title insurance or commitment or binder for title
insurance, and
|
|
|
(vii)
originals of all modification agreements, if applicable and
available.
|
provided
, however , that in lieu of
the foregoing, the Depositor may deliver the following documents,
under the circumstances set forth below: (w) in lieu of the
original Security Instrument, 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 Security Instrument 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”; (x) in lieu of the Security Instrument,
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 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 (y) the Depositor shall not be required to deliver intervening
assignments or Mortgage Note endorsements between the Seller and
the Depositor, and between the Depositor and the Trustee; 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 or the Custodian, as its
agent, a certification to such effect and shall deposit all amounts
paid in respect of such Mortgage Loans in the Master Servicer
Collection Account on the Closing Date. The Depositor shall deliver
such original documents (including any original documents as to
which certified copies had previously been delivered) to the
Trustee or the Custodian, as its agent, promptly after they are
received. The Depositor shall cause the Seller, at its expense, to
cause each assignment of the Security Instrument to the Trustee to
be recorded not later than 180 days after the Closing Date, unless
(a) such recordation is not required by the Rating Agencies or an
Opinion of Counsel addressed to the Trustee has been provided to
the Trustee (with a copy to the Custodian) which states that
recordation of such Security Instrument is not required to protect
the interests of the Certificateholders in the related Mortgage
Loans or (b) MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as the mortgagee of record
solely as nominee for the Seller and its successor and assigns;
provided, however, that each assignment shall be submitted for
recording by the Seller in the manner described above, at no
expense to the Trust or the Trustee or the Custodian, as its agent,
upon the earliest to occur of: (i) reasonable direction by the
Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Trust, (ii) the
occurrence of an Event of Default, (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Seller and
(iv) the occurrence of a servicing transfer as described in
Section 8.02 hereof. Notwithstanding the foregoing, if the
Seller 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 in accordance with
Section 9.05.
Section
2.02 Acceptance of Mortgage Loans by Trustee . (a) The
Trustee acknowledges the sale, transfer and assignment of the Trust
Fund to it by the Depositor and receipt of, subject to further
review and the exceptions which may be noted pursuant to the
procedures described below, and declares that it holds, the
documents (or certified copies thereof) delivered to it or the
Custodian, as its agent, pursuant to Section 2.01, and
declares that it will continue to hold those documents and any
amendments, replacements or supplements thereto and all other
assets of the Trust Fund delivered to it as Trustee in trust for
the use and benefit of all present and future Holders of the
Certificates. On the Closing Date, the Custodian, with respect to
the Mortgage Loans, shall acknowledge with respect to each Mortgage
Loan by delivery to the Depositor and the Trustee of an Initial
Certification receipt of the Mortgage File, but without review of
such Mortgage File, except to the extent necessary to confirm that
such Mortgage File contains the related Mortgage Note or lost note
affidavit. No later than 90 days after the Closing Date (or, with
respect to any Substitute Mortgage Loan, within five Business Days
after the receipt by the Trustee or Custodian thereof), the Trustee
agrees, for the benefit of the Certificateholders, to review or
cause to be reviewed by the Custodian on its behalf (under the
Custodial Agreement), each Mortgage File delivered to it and to
execute and deliver, or cause to be executed and delivered, to the
Depositor and the Trustee an Interim Certification. In conducting
such review, the Trustee or Custodian will ascertain whether all
required documents have been executed and received, and based on
the Mortgage Loan Schedule, whether those documents relate,
determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans it has received, as
identified in the Mortgage Loan Schedule. 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. If the Trustee or the Custodian, as its agent, finds any
document constituting part of the Mortgage File has not been
executed or received, or to be unrelated, determined on the basis
of the Mortgagor name, original principal balance and loan number,
to the Mortgage Loans identified in Exhibit B or to appear
defective on its face (a “Material Defect”), the
Trustee or the Custodian, as its agent, shall promptly notify the
Seller. In accordance with the Mortgage Loan Purchase Agreement,
the Seller shall correct or cure any such defect within ninety (90)
days from the date of notice from the Trustee or the Custodian, as
its agent, of the defect and if the Seller fails to correct or cure
the defect within such period, and such defect materially and
adversely affects the interests of the Certificateholders in the
related Mortgage Loan, the Trustee or the Custodian, as its agent,
shall enforce the Seller’s obligation pursuant to the
Mortgage Loan Purchase Agreement, within 90 days from the
Trustee’s or the Custodian’s notification, to purchase
such Mortgage Loan at the Repurchase 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 (or with respect to
any Substitute Mortgage Loan, within five Business Days after the
receipt by the Trustee or the Custodian thereof), the Trustee or
the Custodian, as its agent, will review, for the benefit of the
Certificateholders, the Mortgage Files delivered to it and will
execute and deliver or cause to be executed and delivered to the
Depositor and the Trustee a Final Certification. In conducting such
review, the Trustee or the Custodian, as its agent, will ascertain
whether an original of each document required to be recorded has
been returned from the recording office with evidence of recording
thereon or a certified copy has been obtained from the recording
office. If the Trustee or the Custodian, as its agent, finds a
Material Defect, the Trustee or the Custodian, as its agent, shall
promptly notify the Seller (provided, however, that with respect to
those documents described in Sections 2.01(b)(iv), (v) and (vii),
the Trustee’s and Custodian’s obligations shall extend
only to the documents actually delivered to the Trustee or the
Custodian pursuant to such Sections). In accordance with the
Mortgage Loan Purchase Agreement, the Seller shall correct or cure
any such defect within 90 days from the date of notice from the
Trustee or the Custodian, as its agent, of the Material Defect and
if the Seller is unable to cure such defect within such period, and
if such defect materially and adversely affects the interests of
the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Seller’s obligation under the Mortgage Loan
Purchase Agreement to provide a Substitute Mortgage Loan (if within
two years of the Closing Date) or purchase such Mortgage Loan at
the Repurchase Price; provided, however, 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, repurchase or substitution must occur within 90 days
from the da
