EXECUTION COPY
STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.,
DEPOSITOR
JPMORGAN CHASE BANK, N.A.,
TRUSTEE
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION,
SELLER
_____________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of January 1,
2005
_____________________________________________
Structured Asset Mortgage
Investments II Inc.Bear
Stearns ALT-A Trust, Mortgage Pass-Through Certificates
Series 2005-1
ARTICLE I
Definitions
ARTICLE II
Conveyance of Mortgage Loans; Original Issuance of Certificates
Section 2.01
Conveyance of Mortgage Loans to Trustee......................46
Section 2.02
Acceptance of Mortgage Loans by Trustee......................48
Section 2.03
Assignment of Interest in the Mortgage Loan Purchase
Agreement....................................................50
Section 2.04
Substitution of Mortgage Loans...............................51
Section 2.05
Issuance of Certificates.....................................52
Section 2.06
Representations and Warranties Concerning the Depositor......53
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01
Master Servicer..............................................55
Section 3.02
REMIC-Related Covenants......................................56
Section 3.03
Monitoring of the Servicer...................................56
Section 3.04
Fidelity Bond................................................57
Section 3.05
Power to Act; Procedures.....................................57
Section 3.06
Due-on-Sale Clauses; Assumption Agreements...................58
Section 3.07
Release of Mortgage Files....................................58
Section 3.08
Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee..............................59
Section 3.09
Standard Hazard Insurance and Flood Insurance Policies.......60
Section 3.10
Presentment of Claims and Collection of Proceeds.............60
Section 3.11
Maintenance of the Primary Mortgage Insurance Policies.......61
Section 3.12
Trustee to Retain Possession of Certain Insurance
Policies and Documents.......................................61
Section 3.13
Realization Upon Defaulted Mortgage Loans....................62
Section 3.14
Compensation for the Master Servicer.........................62
Section 3.15
REO Property.................................................62
Section 3.16
Annual Officer’s Certificate as to
Compliance................63
Section 3.17
Annual Independent Accountant’s Servicing
Report.............63
Section 3.18
Reports Filed with Securities and Exchange Commission........64
Section 3.19
EMC..........................................................65
Section 3.20
UCC..........................................................65
Section 3.21
Optional Purchase of Defaulted Mortgage Loans................65
ARTICLE IV
Accounts
Section 4.01
Protected Accounts...........................................66
Section 4.02
Master Servicer Collection Account...........................67
Section 4.03
Permitted Withdrawals and Transfers from the Master
Servicer Collection Account..................................68
Section 4.04
Distribution Account.........................................69
Section 4.05
Permitted Withdrawals and Transfers from the
Distribution Account.........................................69
Section 4.06
Reserve Fund.................................................71
Section 4.07
Class XP Reserve Account.....................................72
ARTICLE V
Certificates
Section 5.01
Certificates.................................................73
Section 5.02
Registration of Transfer and Exchange of Certificates........80
Section 5.03
Mutilated, Destroyed, Lost or Stolen Certificates............84
Section 5.04
Persons Deemed Owners........................................84
Section 5.05
Transfer Restrictions on Residual Certificates...............84
Section 5.06
Restrictions on Transferability of Certificates..............85
Section 5.07
ERISA Restrictions...........................................86
Section 5.08
Rule 144A Information........................................87
ARTICLE VI
Payments to Certificateholders
Section 6.01
Distributions on the Certificates............................88
Section 6.02
Allocation of Losses.........................................92
Section 6.03
Payments.....................................................92
Section 6.04
Statements to Certificateholders.............................92
Section 6.05
Monthly Advances.............................................95
Section 6.06
Compensating Interest Payments...............................95
ARTICLE VII
The Master Servicer
Section 7.01
Liabilities of the Master Servicer...........................96
Section 7.02
Merger or Consolidation of the Master Servicer...............96
Section 7.03
Indemnification of the Trustee, the Master Servicer and
the Securities Administrator.................................96
Section 7.04
Limitations on Liability of the Master Servicer and
Others.......................................................97
Section 7.05
Master Servicer Not to Resign................................98
Section 7.06
Successor Master Servicer....................................98
Section 7.07
Sale and Assignment of Master Servicing......................98
ARTICLE VIII
Default
Section 8.01
Events of Default...........................................100
Section 8.02
Trustee to Act; Appointment of Successor....................102
Section 8.03
Notification to Certificateholders..........................102
Section 8.04
Waiver of Defaults..........................................103
Section 8.05
List of Certificateholders..................................103
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01
Duties of Trustee...........................................104
Section 9.02
Certain Matters Affecting the Trustee and the Securities
Administrator...............................................106
Section 9.03
Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans..............................107
Section 9.04
Trustee and Securities Administrator May Own Certificates...108
Section 9.05
Trustee’s and Securities Administrator’s Fees and
Expenses....................................................108
Section 9.06
Eligibility Requirements for Trustee and Securities
Administrator...............................................109
Section 9.07
Insurance...................................................109
Section 9.08
Resignation and Removal of the Trustee and Securities
Administrator...............................................109
Section 9.09
Successor Trustee and Successor Securities Administrator....110
Section 9.10
Merger or Consolidation of Trustee or Securities
Administrator...............................................111
Section 9.11
Appointment of Co-Trustee or Separate Trustee...............111
Section 9.12
Federal Information Returns and Reports to
Certificateholders; REMIC Administration....................112
ARTICLE X
Termination
Section 10.01
Termination Upon Repurchase by EMC or its Designee or
Liquidation of the Mortgage Loans...........................115
Section 10.02
Additional Termination Requirements.........................117
ARTICLE XI
Miscellaneous Provisions
Section 11.01
Intent of Parties...........................................119
Section 11.02
Amendment...................................................119
Section 11.03
Recordation of Agreement....................................120
Section 11.04
Limitation on Rights of Certificateholders..................120
Section 11.05
Acts of Certificateholders..................................121
Section 11.06
Governing Law...............................................122
Section 11.07
Notices.....................................................122
Section 11.08
Severability of Provisions..................................123
Section 11.09
Successors and Assigns......................................123
Section 11.10
Article and Section Headings................................123
Section 11.11
Counterparts................................................123
Section 11.12
Notice to Rating Agencies...................................123
APPENDIX
Appendix 1
-
Calculation of Class Y Principal Reduction Amount
EXHIBITS
Exhibit A-1
-
Form of Class A Certificates
Exhibit A-2
-
Form of Class M Certificates
Exhibit A-3
-
Form of Class B-1 and B-2 Certificates
Exhibit A-4
-
Form of Class B-3 Certificates
Exhibit A-5
-
Form of Class R Certificates
Exhibit A-6
-
Form of Class B-IO Certificates
Exhibit A-7
-
Form of Class XP 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
-
GreenPoint Servicing Agreement
Exhibit I
-
Assignment Agreement
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 January 1, 2005, among
Structured Asset Mortgage Investments II Inc., a Delaware
corporation, as depositor (the “Depositor”), JPMorgan
Chase Bank, N.A., a banking association organized under the laws of
the United States of America, 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 (“EMC”).
PRELIMINARY STATEMENT
On
or prior to the Closing Date, the Depositor acquired the Mortgage
Loans from EMC. 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 and the Class R-I Certificate will be designated the
sole class of “residual interests” in such
REMIC.
The
Trustee on behalf of the Trust shall make an election for the REMIC
I Regular Interests, which constitute 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 and the Class R-II Certificate will
be designated the “residual interests” in such
REMIC.
The
Mortgage 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 approximately $813,079,506. The initial
principal amount of the Certificates will not exceed such
Outstanding Principal Balance.
In
consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, EMC
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 the Servicer), or
(y) as provided in the GreenPoint Servicing Agreement, to the
extent applicable to the Servicer, but in no event below the
standard set forth in clause (x).
Account:
The Master Servicer Collection Account, the Distribution Account,
the Protected Account, the Cap Reserve Account or the Class XP
Reserve Account, as the context may require.
Affiliate:
As to any Person, any other Person controlling, controlled by or
under common control with such Person. “Control” means
the power to direct the management and policies of a Person,
directly or indirectly, whether through ownership of voting
securities, by contract or otherwise. “Controlled” and
“Controlling” have meanings correlative to the
foregoing. The Trustee may conclusively presume that a Person is
not an Affiliate of another Person unless a Responsible Officer of
the Trustee has actual knowledge to the contrary.
Agreement: This Pooling and Servicing
Agreement and all amendments hereof and supplements hereto.
Applicable
Credit Rating: For any long-term deposit or security, a credit
rating of AAA in the case of 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 Certificates (other than the Class B-IO Certificates and
the Residual Certificates), the sum of the Realized Losses with
respect to the Mortgage Loans, which are to be applied in reduction
of the Certificate Principal Balance of such Class of 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 Certificates (after all distributions of principal on
such Distribution Date) exceeds (ii) the aggregate Stated Principal
Balance of all of the Mortgage Loans for such Distribution Date.
The Applied Realized Loss Amount shall be allocated first to the
Class B-3 Certificates, the Class B-2 Certificates, the Class B-1
Certificates, the Class M-2 Certificates and the Class 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 shall be allocated to
the Class A-1 Certificates until the Certificate Principal Balance
of such 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
Agreement: The agreement attached hereto as Exhibit I, whereby the
GreenPoint Servicing Agreement was assigned to the Trustee for the
benefit of the Certificateholders.
Assumed
Final Distribution Date: January 25, 2035, or if such day is not a
Business Day, the next succeeding Business Day.
Available
Funds: With respect to each Distribution Date, the aggregate of
Principal Funds and Interest Funds for such Distribution
Date.
Bankruptcy Code: The United States Bankruptcy
Code, as amended as codified in 11 U.S.C.ss.ss.101-1330.
Basis
Risk Shortfall: With respect to any Distribution Date and each
Class of Offered Certificates and the Class B-3 Certificates, 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 and the Class B-3 Certificates
calculated using a Pass-Though Rate equal to the Net Rate Cap for
such Distribution Date.
Basis
Risk Shortfall Carry Forward Amount: With respect to any
Distribution Date and each Class of Offered Certificates and the
Class B-3 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 and the Class B-3
Certificates for such Distribution Date.
Book-Entry
Certificates: Initially, all Classes of Certificates other than the
Class B-3, Class B-IO, Class XP and the Residual
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, the 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 A-1, Class M-1, Class
M-2, Class B-1, Class B-2 or Class B-3 Certificates, the respective
cap contracts, dated January 31, 2005, between the Trustee, on
behalf of the Class A-1, Class M-1, Class M-2, Class B-1, Class B-2
or Class 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, N.A., as Trustee f/b/o
holders of Structured Asset Mortgage Investments II Inc., Bear
Stearns ALT-A Trust 2005-1, Mortgage Pass-Through Certificates,
Series 2005-1 – 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.
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, A-5, A-6 and A-7, with the blanks therein
appropriately completed.
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 Certificates or the Class R 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(b) hereof, minus the sum of
(i) all amounts distributed on previous Distribution Dates on such
Certificate with respect to principal and (ii) any Applied Realized
Loss Amounts allocated to such Certificate on previous Distribution
Dates. With respect to any such Class of Certificates, the
Certificate Principal Balance thereof will equal the sum of the
Certificate Principal Balances of all Certificates in such
Class.
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Certificate
Register: The register maintained pursuant to Section 5.02.
Certificateholder: A Holder of a Certificate.
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Class: With respect to the Certificates, A-1, R-I, R-II, M-1, M-2,
B-1, B-2, B-3, XP and B-IO.
Class
A Certificates: The Class A-1 Certificates.
Class
A Principal Distribution Amount: For any Distribution Date, an
amount equal to the excess, if any, of (i) the aggregate
Certificate Principal Balance of the Class A Certificates
immediately prior to such Distribution Date over (ii) the excess of
(a) the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over (b) the product of (1) the
aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (2) the sum of (x) 15.60% and (y) the Current
Specified Overcollateralization Percentage for such Distribution
Date.
Class B Certificates: The Class B-1, Class B-2
and Class B-3 Certificates. Class B-IO Advances: As defined in
Section 6.01(b).
Class
B-IO Distribution Amount: With respect to any Distribution Date,
the Current Interest for the Class B-IO Certificate for such
Distribution Date (which shall be deemed distributable to the REMIC
II Regular Interest B-IO-I); provided, however, that on and after
the Distribution Date on which the aggregate Certificate Principal
Balance of Class A-1, Class M-1, Class M-2, Class B-1, Class B-2 or
Class B-3 Certificates has been reduced to zero, the Class B-IO
Distribution Amount shall include the Overcollateralization Amount
(which shall be deemed distributable, first, to the REMIC II
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, to the REMIC II Regular Interest
B-IO-P in respect of the principal balance thereof).
Class
B-IO Pass-Through Rate: The Class B-IO Certificates will bear
interest at 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 Uncertificated Principal
Balance of the REMIC I Regular Interests. For purposes of
calculating the Pass-Through Rate for the Class B-IO Certificates,
the numerator is equal to the sum of the following
components:
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(i)
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the Uncertificated Pass-Through
Rate for REMIC I Regular Interest LT1 minus the Marker Rate,
applied to a notional amount equal to the Uncertificated Principal
Balance of REMIC I Regular Interest LT1;
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(ii)
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the Uncertificated Pass-Through
Rate for REMIC I Regular Interest LT2 minus the Marker Rate,
applied to a notional amount equal to the Uncertificated Principal
Balance of REMIC I Regular Interest LT2; and
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(iii)
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the Uncertificated Pass-Through
Rate for REMIC I Regular Interest LT4 minus twice the Marker Rate,
applied to a notional amount equal to the Uncertificated Principal
Balance of REMIC I Regular Interest LT4.
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Class
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 B-1 Certificates immediately prior
to such Distribution Date over (ii) the excess of (a) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the sum of (1) the Certificate Principal
Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date), (2) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date) and
(4) the product of (x) the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date and (y) the sum of
(I) 3.40% and (II) the Current Specified Overcollateralization
Percentage for such Distribution Date.
Class
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 B-2 Certificates immediately prior
to such Distribution Date over (ii) the excess of (a) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the sum of (1) the Certificate Principal
Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date), (2) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date), (4)
the Certificate Principal Balance of the Class B-1 Certificates
(after taking into account the payment of the Class B-1 Principal
Distribution Amount on such Distribution Date) and (5) the product
of (x) the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date and (y) the sum of (I) 1.50% and (II)
the Current Specified Overcollateralization Percentage for such
Distribution Date.
Class
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 B-3 Certificates immediately prior
to such Distribution Date over (ii) the excess of (a) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on
such Distribution Date), (2) the Certificate Principal Balance of
the Class M-1 Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date), (4)
the Certificate Principal Balance of the Class B-1 Certificates
(after taking into account the payment of the Class B-1 Principal
Distribution Amount on such Distribution Date), (5) the Certificate
Principal Balance of the Class B-2 Certificates (after taking into
account the payment of the Class B-2 Principal Distribution Amount
on such Distribution Date) and (6) the product of (x) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (y) the Current Specified
Overcollateralization Percentage for such Distribution
Date.
Class
M Certificates: The Class M-1 and Class M-2
Certificates.
Class
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 M-1 Certificates immediately prior
to such Distribution Date over (ii) the excess of (a) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the sum of (1) the Certificate Principal
Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date) and (2) the product of (x) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date
and (y) the sum of (I) 9.90% and (II) the Current Specified
Overcollateralization Percentage for such Distribution
Date.
Class
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 M-2 Certificates immediately prior
to such Distribution Date over (ii) the excess of (a) the aggregate
Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the sum of (1) the Certificate Principal
Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such
Distribution Date), (2) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution
Date) and (3) the product of (x) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (y)
the sum of (I) 5.40% and (II) the Current Specified
Overcollateralization Percentage for such Distribution
Date.
Class
R Certificates: The Class R-I and R-II Certificates.
Class
R-I Certificate: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit A-5 and
evidencing an interest designated as a “residual
interest” in REMIC I for purposes of the REMIC
Provisions.
Class
R-II Certificate: Any one of the Class R-II Certificates executed
by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit A-5 and
evidencing an interest designated as a “residual
interest” in REMIC II 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.
Closing
Date: January 31, 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, 6th
Floor, New York, New York 10004, Attention: Institutional Trust
Services/Global Debt, Structured Asset Mortgage Investments II
Inc., Bear Stearns ALT-A Trust 2005-1, or at such other address as
the Trustee may designate from time to time.
Counterparty:
Wells Fargo Bank, National Association and any successor thereto,
or any successor counterparty under the Cap Contract.
Current
Interest: As of any Distribution Date, with respect to each Class
of Certificates (other than the Class XP Certificates and the Class
R 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 Residual
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 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, and any successor custodian
appointed pursuant to the provisions hereof and of the Custodial
Agreement.
Cut-off
Date: January 1, 2005.
Cut-off Date
Balance: $813,079,506.
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, and any successor
thereto. Depository: The Depository Trust Company, the nominee of
which is Cede & Co., and 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 GreenPoint 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
2005-1 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 hereof, which shall be denominated
“JPMorgan Chase Bank, N.A., as Trustee f/b/o holders of
Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A
Trust 2005-1, Mortgage Pass-Through Certificates, Series 2005-1
— Distribution Account.”
Distribution
Account Deposit Date: The Business Day prior to
eachDistribution
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, N.A., and 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 GreenPoint
Servicing Agreement.
Due
Period: With respect to any Distribution Date and each Mortgage
Loan, the period commencing on the second day of the month
preceding the month in which the Distribution Date occurs and
ending at the close of business on the first day of the month in
which the Distribution Date occurs.
Eligible
Account: Any of (i) 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 (ii)) 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 the
Certificates then rated by the Rating Agencies). Eligible Accounts
may bear interest.
EMC:
EMC Mortgage Corporation, and any successor thereto.
ERISA:
The Employee Retirement Income Security Act of 1974, as
amended.
Event
of Default: An event of default described in Section
8.01.
Excess
Cashflow: With respect to any Distribution Date, the sum of (i)
Remaining Excess Spread for such Distribution Date and (ii)
Overcollateralization Release Amount 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 A-1, Class M-1, Class
M-2, Class B-1, Class B-2 and Class B-3 Certificates has been
reduced to zero (other than Principal Funds otherwise distributed
to the Holders of Class A-1, Class M-1, Class M-2, Class B-1, Class
B-2 and Class 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 Offered Certificates and the
Class B-3 Certificates and Interest Carry Forward Amounts on the
Class A Certificates, in each case for such Distribution
Date.
Extra
Principal Distribution Amount: With respect to any Distribution
Date, 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.
Fitch: Fitch Ratings, and any successor
thereto.
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) each 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).
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.
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.
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 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.
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 Class of Certificates (other
than the Class XP Certificates and Residual Certificates), the
period from and including the preceding Distribution Date (or, in
the case of the first Distribution Date, from the Closing 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
Carry Forward Amount: As of any Distribution Date and with respect
to each Class of Certificates (other than the Class XP
Certificates, Class B-IO Certificates and Residual Certificates),
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 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 (i) the sum, without duplication,
of (a) all scheduled interest collected in respect to the Mortgage
Loans during the related Due Period less the related Servicing Fee,
(b) all Monthly Advances relating to interest with respect to the
Mortgage Loans made on or prior to the related Distribution Account
Deposit Date, (c) all Compensating Interest Payments with respect
to the Mortgage Loans and required to be remitted by the Master
Servicer pursuant to this Agreement or the Servicer pursuant to the
GreenPoint Servicing Agreement with respect to such Distribution
Date, (d) Liquidation Proceeds with respect to the 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 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 each case to the extent remitted by EMC or the
Servicer, as applicable, to the Distribution Account pursuant to
this Agreement or the GreenPoint Servicing 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.
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.
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 the Class B-3 Certificates and for the first
Interest Accrual Period, January 26, 2005. With respect to each
Class of Offered Certificates and the Class B-3 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 Servicer or the Master 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
Servicer, such expenses including (a) property protection expenses,
(b) property sales expenses, (c) foreclosure and sale costs,
including court costs and reasonable attorneys’ fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
Liquidation
Proceeds: Cash 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-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.
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 and (i) the Class A-1
Certificates, 0.28% per annum, (ii) the Class M-1 Certificates,
0.50% per annum, (iii) the Class M-2 Certificates, 0.75% per annum,
(iv) the Class B-1 Certificates, 1.30% per annum, (v) the Class B-2
Certificates, 1.90% per annum and (vi) the Class B-3 Certificates,
1.90% per annum; and with respect to any Distribution Date after
the first possible Optional Termination Date and (i) the Class A-1
Certificates, 0.56% per annum, (ii) the Class M-1 Certificates,
0.75% per annum, (iii) the Class M-2 Certificates, 1.125% per
annum, (iv) the Class B-1 Certificates, 1.95% per annum, (v) the
Class B-2 Certificates, 2.85% per annum and (vi) the Class B-3
Certificates, 2.85% per annum
Marker
Rate: With respect to the Class B-IO Certificates and any
Distribution Date, a per annum rate equal to two (2) times the
weighted average of the Uncertificated REMIC I Pass-Through Rates
for REMIC I Regular Interest LT2 and REMIC I Regular Interest
LT3.
Master
Servicer: As of the Closing Date, Wells Fargo Bank, National
Association and, thereafter, its respective successors in interest
who meet the qualifications of the Greenpoint Servicing Agreement
and this Agreement.
Master
Servicer Certification: A written certification covering servicing
of the Mortgage Loans by the Servicer 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, N.A., as Trustee f/b/o holders of
Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A
Trust 2005-1, Mortgage Pass-Through Certificates, Series 2005-1
— Master Servicer Collection Account,” and which shall
be an Eligible Account.
Master
Servicing Compensation: The meaning specified in Section
3.14.
Material
Defect: The meaning specified in Section 2.02(b).
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, and
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 Servicer pursuant to the GreenPoint 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 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 Mortgage
Loans for such Distribution Date.
Moody’s: Moody’s Investors
Service, Inc., and any successor in interest.
Mortgage
File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note,
which rate is equal to the “Mortgage Interest Rate” set
forth with respect thereto on the Mortgage Loan
Schedule.
Mortgage
Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the
Trust Fund, as identified in the Mortgage Loan Schedule (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 January 31, 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, 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
Prepayment 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 by the Master Servicer or the Servicer in
accordance with the GreenPoint Servicing Agreement or this
Agreement and (ii) unreimbursed advances by the Master Servicer or
the Servicer and Monthly Advances.
Net
Rate: With respect to each Mortgage Loan, the Mortgage Interest
Rate in effect from time to time less the Servicing Fee Rate
expressed as a per annum rate.
Net
Rate Cap: For any Distribution Date, the weighted average of the
Net Rates of the Mortgage Loans, 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 is equal to the
Uncertificated REMIC I Pass-Through Rate for the REMIC I Regular
Interest LT1.
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 Servicer and (ii) which, in
the good faith judgment of the Master Servicer, the Trustee or the
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
Servicer from Liquidation Proceeds, Insurance Proceeds or future
payments on the Mortgage Loan for which such advance or Monthly
Advance was 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 I
Regular Interests.
Offered
Certificate: Any Senior Certificate or Offered
SubordinateCertificate.
Offered Subordinate Certificate: Any of the
Class M-1, Class M-2, Class B-1 or Class B-2 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 2.55875% 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 EMC, the Master Servicer or the Depositor.
Optional
Termination Date: The Distribution Date on which the aggregate
Stated Principal Balance of all of the Mortgage Loans is equal to
or less than 20% of the aggregate Stated Principal Balance of all
of the Mortgage Loans as of the Cut-off Date.
Original
Subordinate Principal Balance: The sum of the aggregate Certificate
Principal Balances of each Class of Subordinate Certificates as of
the Closing Date.
Original
Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a
Mortgage Loan, except in instances where either clauses (i) or (ii)
is unavailable, the other may be used to determine the Original
Value, or if both clauses (i) and (ii) are unavailable, Original
Value may be determined from other sources reasonably acceptable to
the Depositor.
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 Mortgage Loans
for such Distribution Date over (b) the aggregate Certificate
Principal Balance of the Offered Certificates and the Class B-3
Certificates on such Distribution Date (after taking into account
the payment of principal other than any Extra Principal
Distribution Amount on such Certificates).
Overcollateralization
Release Amount: With respect to any Distribution Date is the lesser
of (x) the sum of the amounts described in clauses (a) through (e)
and (g) in the definition of Principal Funds for such Distribution
Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date (assuming that 100% of such
Principal Funds is applied as a principal payment on such
Distribution Date) over (ii) the Overcollateralization Target
Amount for such Distribution Date (with the amount pursuant to
clause (y) deemed to be $0 if the Overcollateralization Amount is
less than or equal to the Overcollateralization Target Amount on
that Distribution Date).
Overcollateralization
Target Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date, $4,471,937, (b) on or after the Stepdown Date
and if a Trigger Event is not in effect, the greater of (i) the
lesser of (1) $4,471,937 and (2) 1.10% of the then current
aggregate Stated Principal Balance of the Mortgage Loans as of such
Distribution Date and (ii) $4,065,398 and (c) on or after the
Stepdown Date and if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding
Distribution Date.
Pass-Through
Rate: As to each Class of Certificates and the REMIC I Regular
Interests, the rate of interest determined as provided with respect
thereto in Section 5.01(c).
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:
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(1)
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;
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(2)
(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;
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(3)
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;
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(4)
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;
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(5)
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;
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(6)
a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
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(7)
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
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(8)
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;
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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
PrivateCertificates.
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 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, a Principal Prepayment in full, or that became a
Liquidated Loan during the related Prepayment Period, (other than a
Principal Prepayment in full resulting from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 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 Mortgage Loan immediately prior to such prepayment (or
liquidation) or in the case of a partial Principal Prepayment on
the amount of such prepayment (or liquidation proceeds) exceeds
(ii) the amount of interest paid or collected in connection with
such Principal Prepayment or such liquidation proceeds less the sum
of (a) any Prepayment Charges and (b) the related Servicing
Fee.
Prepayment
Period: With respect to a Distribution Date is the immediately
preceding calendar month in the case of the Mortgage Loans for
which EMC is the Servicer and in the case of the Mortgage Loans for
which EMC is not the Servicer such period as is provided in the
GreenPoint Servicing Agreement with respect to the
Servicer.
Primary
Mortgage Insurance Policy: A policy underwriting primary mortgage
insurance.
Principal
Distribution Amount: With respect to each Distribution Date, an
amount equal to the excess of (i) sum of (a) the Principal Funds
for such Distribution Date and (b) any Extra Principal Distribution
Amount for such Distribution Date over (ii) any
Overcollateralization Release Amount for such Distribution
Date.
Principal
Funds: With respect to any Distribution Date, (i) the sum, without
duplication, of (a) all scheduled principal collected on the
Mortgage Loans during the related Due Period, (b) all Monthly
Advances relating to principal made on the Mortgage Loans on or
before the Distribution Account Deposit Date, (c) Principal
Prepayments on the Mortgage Loans, exclusive of prepayment charges
or penalties, collected during the related Prepayment Period, (d)
the Stated Principal Balance of each Mortgage Loan that was
purchased by the Seller pursuant to Section 2.02, 2.03 or 3.21
during the related Due Period, (e) the aggregate of all
Substitution Adjustment Amounts in connection with the substitution
of Mortgage Loans pursuant to Section 2.04 during the related Due
Period, (f) amounts in respect of principal paid by EMC pursuant to
Section 10.01 and (g) all Liquidation Proceeds collected during the
related Prepayment Period (or, in the case of Subsequent
Recoveries, during the related Due Period) on the Mortgage Loans,
to the extent such Liquidation Proceeds relate to principal, in
each case to the extent remitted by EMC or the Servicer to the
Distribution Account pursuant to this Agreement or the GreenPoint
Servicing Agreement minus (ii) all amounts required to be
reimbursed pursuant to Sections 4.01, 4.03 and 4.05 or as otherwise
set forth in this 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 the Repurchase
Proceeds, but excluding the principal portion of Net Liquidation
Proceeds.
Private
Certificate: Any Class B-3 Certificate, Class XP Certificate, Class
B-IO Certificate or Class R Certificate.
Prospectus:
The prospectus, dated December 20, 2004, as supplemented by the
prospectus supplement dated January 26, 2005, relating to the
offering of the Certificates.
Protected
Account: An account established and maintained for the benefit of
Certificateholders by the Servicer with respect to the Mortgage
Loans and with respect to REO Property pursuant to the GreenPoint
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: S&P and Moody’s.
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;
provided, however, that in the event the Master Servicer receives
Subsequent Recoveries with respect to any Mortgage Loan, the amount
of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such Subsequent Recoveries are applied to
reduce the Certificate Principal Balance of any Class of
Certificates on any Distribution Date.
Record
Date: For each Class of 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.
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 Offered
Certificates and the Class B-3 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
Offered Certificates and the Class B-3 Certificates.
Reinvestment
Agreements: One or more reinvestment agreements, acceptable to the
Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
Relief
Act: The Servicemembers’ Civil Relief Act, or similar state
laws.
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 of the related Excess Spread over the
related Extra Principal Distribution Amount. REMIC: A real estate
mortgage investment conduit, as defined in the Code.
REMIC
I: That group of assets contained in the Trust Fund designated as a
REMIC consisting of (i) the Mortgage Loans, (ii) amounts on deposit
in the Master Servicer Collection Account related to the Mortgage
Loans, (iii) any REO Property relating to the Mortgage Loans, (iv)
the rights of the Trust with respect the Mortgage Loans under the
GreenPoint Servicing Agreement, (v) the rights of the Trust with
respect the Mortgage Loans under any related Assignment Agreement
or insurance policy and (vi) any proceeds of the foregoing, but not
including the Cap Contract or any proceeds thereof.
REMIC
I Available Distribution Amount: For any Distribution Date, the sum
of the Principal Funds and Interest Funds (other than any
Subsequent Recoveries) for such Distribution Date.
REMIC
I Distribution Amount: For any Distribution Date, the following
amounts, in the following order of priority, shall be distributed
by REMIC I to REMIC II on account of the REMIC I Regular Interests
and the Class R-I Residual Interest:
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(1)
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to the extent of the REMIC I
Available Distribution Amount, to REMIC II as the holder of the
REMIC I Regular Interests LT1, LT2, LT3 and 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;
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(2)
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the amount of prepayment charges
received with respect to the Mortgage Loans and distributable to
the Class XP Certificates, to the REMIC I Regular Interest
LT1;
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(3)
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to REMIC II as the holder of the
REMIC I Regular Interests, in an amount equal to the remainder of
the REMIC I Available Distribution Amount after the distributions
made pursuant to clause (1) above, allocated as follows (except as
provided below):
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(A)
in respect of the REMIC I Regular Interests LT2, LT3 and LT4, their
respective Principal Distribution Amounts;
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(B)
in respect of the REMIC I Regular Interest LT1, any remainder until
the Uncertificated Principal Balance thereof is reduced to zero;
and
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(C)
any remainder in respect of the REMIC I Regular Interests LT2, LT3
and LT4, pro rata according to their respective Uncertificated
Principal Balances as reduced by the distributions deemed made
pursuant to clause (A) above, until their respective Uncertificated
Principal Balances are reduced to zero;
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(4)
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the amount of any Subsequent
Recoveries for such Distribution Date, to REMIC II as the holder of
the REMIC I Regular Interests, in respect of the REMIC I Regular
Interests LT1, LT2, LT3 and LT4, pro rata according to the amount
of unreimbursed Realized Losses previously allocated to each such
Class pursuant to the definition of REMIC I Realized Loss;
provided, however, that any amounts distributed pursuant to this
clause (4) shall not cause a reduction in the Uncertificated
Principal Balances of any of the REMIC I Regular Interests;
and
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(5)
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any remaining amounts of the
REMIC I Available Distribution Amount or of any Subsequent
Recoveries to the Holders of the Class R-I Certificates.
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REMIC
I Interests: The REMIC I Regular Interests and the Class R-I
Certificates.
REMIC
I Principal Reduction Amounts: For any Distribution Date, the
amounts by which the principal balances of the REMIC I 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:
Y1
= the principal balance of the REMIC I Regular Interest LT1 after
distributions on the prior Distribution Date.
Y2
= the principal balance of the REMIC I Regular Interest LT2 after
distributions on the prior Distribution Date.
Y3
= the principal balance of the REMIC I Regular Interest LT3 after
distributions on the prior Distribution Date.
Y4
= the principal balance of the REMIC I Regular Interest LT4 after
distributions on the prior Distribution Date (note: Y3 =
Y4).
ΔY1
= the REMIC I Regular Interest LT1 Principal Reduction
Amount.
ΔY2
= the REMIC I Regular Interest LT2 Principal Reduction
Amount.
ΔY3
= the REMIC I Regular Interest LT3 Principal Reduction
Amount.
ΔY4
= the REMIC I Regular Interest LT4 Principal Reduction
Amount.
P0
= the aggregate principal balance of the REMIC I Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of
Realized Losses on the prior Distribution Date.
P1
= the aggregate principal balance of the REMIC I Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of
Realized Losses to be made on such Distribution Date.
ΔP
= P0 — P1 = the aggregate of the REMIC I Regular Interests
LT1, LT2, LT3 and LT4 Principal Reduction Amounts.
=
the aggregate of Realized Losses to be allocated to, and the
principal distributions to be made on, the Class A-1 Certificates
on such Distribution Date (including distributions of accrued and
unpaid interest on the Class B-IO Certificates for prior
Distribution Dates).
R0
= the Net Rate Cap (stated as a monthly rate) after giving effect
to amounts distributed and Realized Losses allocated on the prior
Distribution Date.
R1
= the Net Rate Cap (stated as a monthly rate) after giving effect
to amounts to be distributed and Realized Losses to be allocated on
such Distribution Date.
α
= (Y2 + Y3)/P0. The initial value of α on the Closing Date for
use on the first Distribution Date shall be 0.0001.
γ0
= the lesser of (A) the sum for all Classes of 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 Rate Cap, 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) R0*P0.
γ1
= the lesser of (A) the sum for all Classes of 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 Rate Cap, 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) R1*P1.
Then,
based on the foregoing definitions:
ΔY1 =
ΔP — ΔY2 — ΔY3 —
ΔY4;
ΔY2 =
(α/2){( γ;0R1 — γ1R0)/R0R1};
ΔY3
= αΔP — ΔY2; and
ΔY4 =
ΔY3.
if both AY2 and AY3, as so determined, are
non-negative numbers.
Otherwise:
(1)
If ΔY2, as so determined, is negative, then
ΔY2 =
0;
ΔY3 =
α{γ1R0P0 — γ0R1P1}/{γ1R0};
ΔY4 =
ΔY3; and
ΔY1 =
ΔP — ΔY2 — ΔY3 —
ΔY4.
(2)
If ΔY3, as so determined, is negative, then
ΔY3 =
0;
ΔY2 =
α{γ1R0P0 — γ0R1P1}/{2R1R0P1 —
γ1R0};
ΔY4 =
ΔY3; and
ΔY1 =
ΔP — ΔY2 — ΔY3 —
ΔY4.
REMIC
I Realized Loss: Realized Losses on Mortgage Loans shall be
allocated to the REMIC I Regular Interests as follows: Realized
Losses shall be allocated, first, to the REMIC I Regular Interests
LT2, LT3 and LT4 pro rata according to their respective REMIC I
Principal Reduction Amounts to the extent thereof in reduction of
the Uncertificated Principal Balance of such REMIC I Regular
Interests and, second, the remainder, if any, of Realized Losses
shall be allocated to the REMIC I Regular Interest LT1 in reduction
of the Uncertificated Principal Balance thereof.
REMIC
I Regular Interests: REMIC I Regular Interest LT1, REMIC I Regular
Interest LT2, REMIC I Regular Interest LT3 and REMIC I Regular
Interest LT4.
REMIC
I Regular Interest LT1: A regular interest in REMIC I that is held
as an asset of REMIC II, that has an initial principal balance
equal to the related Uncertificated Principal Balance, that bears
interest at the related Uncertificated REMIC I Pass-Through Rate,
and that has such other terms as are described herein.
REMIC
I Regular Interest LT1 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC I Regular
Interest LT1 Principal Reduction Amount for such Distribution Date
over the Realized Losses allocated to the REMIC I Regular Interest
LT1 on such Distribution Date.
REMIC
I Regular Interest LT2: A regular interest in REMIC I that is held
as an asset of REMIC II, that has an initial principal balance
equal to the related Uncertificated Principal Balance, that bears
interest at the related Uncertificated REMIC I Pass-Through Rate,
and that has such other terms as are described herein.
REMIC
I Regular Interest LT2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC I Regular
Interest LT2 Principal Reduction Amount for such Distribution Date
over the Realized Losses allocated to the REMIC I Regular Interest
LT2 on such Distribution Date.
REMIC
I Regular Interest LT3: A regular interest in REMIC I that is held
as an asset of REMIC II, that has an initial principal balance
equal to the related Uncertificated Principal Balance, that bears
interest at the related Uncertificated REMIC I Pass-Through Rate,
and that has such other terms as are described herein.
REMIC
I Regular Interest LT3 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC I Regular
Interest LT3 Principal Reduction Amount for such Distribution Date
over the Realized Losses allocated to the REMIC I Regular Interest
LT3 on such Distribution Date.
REMIC
I Regular Interest LT4: A regular interest in REMIC I that is held
as an asset of REMIC II, that has an initial principal balance
equal to the related Uncertificated Principal Balance, that bears
interest at the related Uncertificated REMIC I Pass-Through Rate,
and that has such other terms as are described herein.
REMIC
I Regular Interest LT4 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC I Regular
Interest LT4 Principal Reduction Amount for such Distribution Date
over the Realized Losses allocated to the REMIC I Regular Interest
LT4 on such Distribution Date.
REMIC
II: That group of assets contained in the Trust Fund designated as
a REMIC consisting of the REMIC I Regular Interests.
REMIC
II Certificates: The REMIC II Regular Certificates and the Class
R-II Certificates.
REMIC
II Regular Certificates: As defined in Section 5.01(c).
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 2005-1 REMIC to fail to qualify as a
REMIC while any regular interest in such 2005-1 REMIC is
outstanding, (ii) result in a tax on prohibited transactions with
respect to any 2005-1 REMIC or (iii) constitute a taxable
contribution to any 2005-1 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.
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
Certificates: Any of the Class R 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 any successor thereto.
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, and any
successor thereto, 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 A 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 M-1, Class M-2, Class B-1, Class B-2 and Class 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 Mortgage Loans for such Distribution Date.
Servicer: With respect to each Mortgage Loan,
GreenPoint and any successor thereto.
Servicer
Remittance Date: With respect to each Mortgage Loan, the date set
forth in the GreenPoint 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 for the Distribution Date preceding such Distribution Date and
(ii) the applicable Servicing Fee Rate.
Servicing
Fee Rate: As to any Mortgage Loan, a per annum rate as set forth in
the Mortgage Loan Schedule.
Startup Day:
January 31, 2005.
Stated
Principal Balance: With respect to any 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
Servicer as recoveries of principal in accordance with this
Agreement or the GreenPoint Servicing Agreement with respect to
such Mortgage Loan, that were received by the 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.
Stepdown
Date: The earlier to occur of (i) the Distribution Date on which
the Certificate Principal Balance of the Class A Certificates has
been reduced to zero and (ii) the later to occur of (a) the
Distribution Date in February 2008 and (b) the first Distribution
Date on which the sum of the aggregate Certificate Principal
Balance of the Class M-1, Class M-2, Class B-1, Class B-2 and Class
B-3 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 16.70%.
Subordinate
Certificates: The Class M-1 Certificates, Class M-2 Certificates,
Class B-1 Certificates, Class B-2 Certificates, Class B-3
Certificates, Class XP Certificates, Class B-IO Certificates and
Residual Certificates.
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) in respect of 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 GreenPoint 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
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 40% of the related Senior
Enhancement Percentage or (ii) the percentage of the cumulative
amount of Realized Losses on the Mortgage Loans as of such date of
determination is greater than the applicable percentage listed
below of the aggregate Stated Principal Balances of the 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, N.A., and any
successor thereto, or any successor trustee appointed as herein
provided.
2005-1
REMIC: Any of REMIC I and REMIC II.
Uncertificated
Accrued Interest: With respect to any REMIC I Regular Interest for
any Distribution Date, one month’s interest at the related
Uncertificated Pass-Through Rate for such Distribution Date,
accrued on the Uncertificated Principal Balance immediately prior
to such Distribution Date. Uncertificated Accrued Interest for the
REMIC I Regular Interests shall accrue on the basis of a 360-day
year consisting of twelve 30-day months. For purposes of
calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interest for any Distribution Date, any Prepayment
Interest Shortfalls and Relief Act Shortfalls (to the extent not
covered by Compensating Interest) for any Distribution Date shall
be allocated among REMIC I Regular Interests LT1, LT2, LT3 and LT4,
pro rata, based on, and to the extent of, Uncertificated Accrued
Interest, as calculated without application of this
sentence.
Uncertificated Pass-Through Rate: The
Uncertificated REMIC I Pass-Through Rate.
Uncertificated
Principal Balance: With respect to each REMIC Regular Interest, the
principal amount of such REMIC Regular Interest outstanding as of
any date of determination. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC Regular Interest
shall equal the amount set forth in the Section 5.01 as its initial
Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each such REMIC Regular
Interest shall be reduced by all distributions of principal made on
such REMIC Regular Interest on such Distribution Date pursuant to
Section 5.01 (other than any distributions made pursuant to clause
(4) of the definition of REMIC I Distribution Amount) and shall be
further reduced on such Distribution Date by Realized Losses as
provided by the definition of REMIC I Realized Losses. The
Uncertificated Principal Balance of each REMIC Regular Interest
shall never be less than zero.
Uncertificated
REMIC I Pass-Through Rate: With respect to any Distribution Date
and (i) REMIC I Regular Interests LT1 and LT2, the weighted average
of the Net Rates of the Mortgage Loans, (ii) REMIC I Regular
Interest LT3, zero (0.00%) and (iii) REMIC I Regular Interest LT4,
twice the weighted average of the Net Rates of the Mortgage
Loans.
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 to the
GreenPoint Servicing Agreement, without regard to whether or not
such policy is maintained.
United
States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any
state thereof or the District of Columbia (except, in the case of a
partnership, to the extent provided in regulations), provided that,
for purposes solely of the Class R Certificates, no partnership or
other entity treated as a partnership for United States federal
income tax purposes shall be treated as a United States Person
unless all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United
States federal income tax purposes are United States Persons, or an
estate whose income is subject to United States federal income tax
regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the
administration of the trust and one or more such United States
Persons have the authority to control all substantial decisions of
the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was
in existence on August 20, 1996 (other than a trust treated as
owned by the grantor under subpart E of part I of subchapter J of
chapter 1 of the Code), and which was treated as a United States
person on August 20, 1996 may elect to continue to be treated as a
United States person notwithstanding the previous
sentence.
Unpaid
Realized Loss Amount: With respect to any Distribution Date and a
Class of Offered Certificates and the Class B-3 Certificates, is
the excess of (i) Applied Realized Loss Amounts allocated to such
Class over (ii) the sum of all distributions to such Class in
reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates.
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
applicable Mortgage Loan Schedule, including all interest and
principal due with respect to the Mortgage Loans after the Cut-off
Date, but excluding any payments of principal and interest due on
or prior to the Cut-off Date; (ii) such assets as shall from time
to time be credited or are required by the terms of this Agreement
to be credited to the Master Servicer Collection Account, (iii)
such assets relating to the Mortgage Loans as from time to time may
be held by the Servicer in a Protected Account, the Master Servicer
in the Master Servicer Collection Account, 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 Class A-1, Class
M-1, Class M-2, Class B-1, Class B-2 and Class 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
GreenPoint Servicing Agreement as assigned to the Trustee on behalf
of the Certificateholders by the Assignment Agreement, (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 Depositor 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 to the order of the Trustee and showing
an unbroken chain of endorsements from the original payee 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 (X) 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,
N.A., as Trustee”, with evidence of recording with respect to
each Mortgage Loan in the name of the Trustee thereon (or if clause
(X) 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: (X) 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”; (Y) 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 (Z) the Depositor shall not be required to deliver intervening
assignments or Mortgage Note endorsements between the related
underlying seller of the Mortgage Loans and EMC, between EMC 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, at its expense, the assignment
of the Security Instrument to the Trustee to be recorded not later
than 180 days after the Closing Date unless such (a) recordation is
not required by the Rating Agencies or an Opinion of Counsel 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 Depositor and its successor and
assigns; provided, however, that each assignment shall be submitted
for recording by the Depositor 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 Depositor and (iv) the
occurrence of a servicing transfer as described in Section 8.02
hereof. Notwithstanding the foregoing, if the Depositor fails to
pay the cost of recording the assignments, such expense will be
paid by the Trustee and the Trustee shall be reimbursed for such
expenses by the Trust 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 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 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 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 not to have been
executed or received, or to be unrelated to the Mortgage Loans
identified in Exhibit B, or to appear to be defective on its face,
the Trustee or the Custodian, as its agent, shall promptly notify
the Seller. In accordance with the Mortgage Loan Purchase
Agreement, the Seller shall correct or cure any such defect within
ninety 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 any
document constituting part of the Mortgage File has not been
received, or to be unrelated, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the
Mortgage Loans identified in Exhibit B, or to appear defective on
its face (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
obligations shall extend only to the documents actually delivered
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 date such breach was discovered; provided, further, that
if such defect relates solely to the inability of the Seller to
deliver the original Security Instrument or intervening assignments
thereof, or a certified copy, because the originals of such
documents or a certified copy, have not been returned by the
applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event
later than 360 days after the Closing Date.
(c) In
the event that a Mortgage Loan is purchased by the Seller in
accordance with Sections 2.02(a) or (b) above, the Seller shall
remit to the Master Servicer the Repurchase Price for deposit in
the Master Servicer Collection Account and the Seller shall provide
to the Trustee written notification detailing the components of the
Repurchase Price. Upon deposit of the Repurchase Price in the
Master Servicer Collection Account, the Depositor shall notify the
Trustee and the Trustee or the Custodian, as its agent (upon
receipt of a Request for Release in the form of Exhibit D attached
hereto with respect to such Mortgage Loan), shall release to the
Seller the related Mortgage File and the Trustee shall execute and
deliver all instruments of transfer or assignment, without
recourse, representation or warranty, furnished to it by the Seller
as are necessary to vest in the Seller title to and rights under
the Mortgage Loan. Such purchase shall be deemed to have occurred
on the date on which the Repurchase Price in available funds is
received by the Trustee. The Master Servicer shall amend the
Mortgage Loan Schedule, which was previously delivered to it by the
Depositor in a form agreed to between the Depositor and the Master
Servicer, to reflect such repurchase and shall promptly notify the
Trustee of such amendment and the Trustee shall promptly notify the
Rating Agencies of such amendment. The obligation of the Seller to
repurchase any Mortgage Loan as to which such a defect in a
constituent document exists shall be the sole remedy respecting
such defect available to the Certificateholders or to the Trustee
on their behalf.
Section 2.03 Assignment of
Interest in the Mortgage Loan Purchase Agreement. (a)The Depositor
hereby assigns to the Trustee, on behalf of the Certificateholders,
all of its right, title and interest in the Mortgage Loan Purchase
Agreement, including but not limited to Depositor’s rights
and obligations pursuant to the GreenPoint Servicing Agreement
(noting that the Seller has retained the right in the event of
breach of the representations, warranties and covenants, if any,
with respect to the Mortgage Loans of the Servicer under the
GreenPoint Servicing Agreement to enforce the provisions thereof
and to seek all or any available remedies). The obligations of the
Seller to substitute or repurchase, as applicable, a Mortgage Loan
shall be the Trustee’s and the Certificateholders’ sole
remedy for any breach thereof. At the request of the Trustee, the
Depositor shall take such actions as may be necessary to enforce
the above right, title and interest on behalf of the Trustee and
the Certificateholders or shall execute such further documents as
the Trustee may reasonably require in order to enable the Trustee
to carry out such enforcement.
(b) If
the Depositor, the Master Servicer or the Trustee discovers a
breach of any of the representations and warranties set forth in
the Mortgage Loan Purchase Agreement, which breach materially and
adversely affects the value of the interests of Certificateholders
or the Trustee in the related Mortgage Loan, the party discovering
the breach shall give prompt written notice of the breach to the
other parties. The Seller, within 90 days of its discovery or
receipt of notice that such breach has occurred (whichever occurs
earlier), shall cure the breach in all material respects or,
subject to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, shall purchase the Mortgage Loan or
any property acquired with respect thereto from the Trustee;
provided, however, that if there is a breach of any representation
set forth in the Mortgage Loan Purchase Agreement, and the Mortgage
Loan or the related property acquired with respect thereto has been
sold, then the Seller shall pay, in lieu of the Repurchase Price,
any excess of the Repurchase Price over the Net Liquidation
Proceeds received upon such sale. If the Net Liquidation Proceeds
exceed the Repurchase Price, any excess shall be paid to the Seller
to the extent not required by law to be paid to the borrower. Any
such purchase by the Seller shall be made by providing an amount
equal to the Repurchase Price to the Master Servicer for deposit in
the Master Servicer Collection Account and written notification
detailing the components of such Repurchase Price. The Depositor
shall notify the Trustee and submit to the Trustee or the
Custodian, as its agent, a Request for Release, and the Trustee
shall release, or the Trustee shall cause the Custodian to release,
to the Seller the related Mortgage File and the Trustee shall
execute and deliver all instruments of transfer or assignment
furnished to it by the Seller, without recourse, representation or
warranty as are necessary to vest in the Seller title to and rights
under the Mortgage Loan or any property acquired with respect
thereto. Such purchase shall be deemed to have occurred on the date
on which the Repurchase Price in available funds is received by the
Trustee. The Master Servicer shall amend the Mortgage Loan Schedule
to reflect such repurchase and shall promptly notify the Trustee
and the Trustee shall promptly notify the Rating Agencies of such
amendment. Enforcement of the obligation of the Seller to purchase
(or substitute a Substitute Mortgage Loan for) any Mortgage Loan or
any property acquired with respect thereto (or pay the Repurchase
Price as set forth in the above proviso) as to which a breach has
occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the
Trustee on their behalf.
Section 2.04 Substitution of
Mortgage Loans. Notwithstanding anything to the contrary in this
Agreement, in lieu of purchasing a Mortgage Loan pursuant to the
Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Seller may, no later than the date by which such
purchase by the Seller would otherwise be required, tender to the
Trustee a Substitute Mortgage Loan accompanied by a certificate of
an authorized officer of the Seller that such Substitute Mortgage
Loan conforms to the requirements set forth in the definition of
“Substitute Mortgage Loan” in the Mortgage Loan
Purchase Agreement or this Agreement, as applicable; provided,
however, that substitution pursuant to the Mortgage Loan Purchase
Agreement or this Section 2.04, as applicable, in lieu of purchase
shall not be permitted after the termination of the two-year period
beginning on the Startup Day; provided, further, that if the breach
would cause the Mortgage Loan to be other than a “qualified
mortgage” as defined in Section 860G(a)(3) of the Code, any
such cure or substitution must occur within 90 days from the date
the breach was discovered. The Trustee or the Custodian, as its
agent, shall examine the Mortgage File for any Substitute Mortgage
Loan in the manner set forth in Section 2.02(a) and the Trustee or
the Custodian, as its agent, shall notify the Seller, in writing,
within five Business Days after receipt, whether or not the
documents relating to the Substitute Mortgage Loan satisfy the
requirements of the fourth sentence of Section 2.02(a). Within two
Business Days after such notification, the Seller shall provide to
the Trustee for deposit in the Distribution Account the amount, if
any, by which the Outstanding Principal Balance as of the next
preceding Due Date of the Mortgage Loan for which substitution is
being made, after giving effect to Scheduled Principal due on such
date, exceeds the Outstanding Principal Balance as of such date of
the Substitute Mortgage Loan, after giving effect to Scheduled
Principal due on such date, which amount shall be treated for the
purposes of this Agreement as if it were the payment by the Seller
of the Repurchase Price for the purchase of a Mortgage Loan by the
Seller. After such notification to the Seller and, if any such
excess exists, upon receipt of such deposit, the Trustee shall
accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a
substitution, accrued interest on the Substitute Mortgage Loan for
the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of
the Trust Fund and accrued interest for such month on the Mortgage
Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of
the Seller. The Scheduled Principal on a Substitute Mortgage Loan
due on the Due Date in the month of substitution shall be the
property of the Seller and the Scheduled Principal on the Mortgage
Loan for which the substitution is made due on such Due Date shall
be the property of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian
of a Request for Release for such Mortgage Loan), the Trustee shall
release to the Seller the related Mortgage File related to any
Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and
shall execute and deliver all instruments of transfer or
assignment, without recourse, representation or warranty in form as
provided to it as are necessary to vest in the Seller title to and
rights under any Mortgage Loan released pursuant to the Mortgage
Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver the documents related to the
Substitute Mortgage Loan in accordance with the provisions of the
Mortgage Loan Purchase Agreement or Sections 2.01(b) and 2.02(b) of
this Agreement, as applicable, with the date of acceptance of the
Substitute Mortgage Loan deemed to be the Closing Date for purposes
of the time periods set forth in such Sections. The representations
and warranties set forth in the Mortgage Loan Purchase Agreement
shall be deemed to have been made by the Seller with respect to
each Substitute Mortgage Loan as of the date of acceptance of such
Mortgage Loan by the Trustee. The Master Servicer shall amend the
Mortgage Loan Schedule to reflect such substitution and shall
provide a copy of such amended Mortgage Loan Schedule to the
Trustee and the Trustee shall provide a copy of such amended
Mortgage Loan Schedule to the Rating Agencies.
Section 2.05 Issuance of
Certificates. The Trustee acknowledges the assignment to it of the
Mortgage Loans and the other assets comprising the Trust Fund and,
concurrently therewith, has signed, and countersigned and delivered
to the Depositor, in exchange therefor, Certificates in such
authorized denominations representing such Fractional Undivided
Interests as the Depositor has requested. The Trustee agrees that
it will hold the Mortgage Loans and such other assets as may from
time to time be delivered to it segregated on the books of the
Trustee in trust for the benefit of the
Certificateholders.
The
Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the Depositor in and to the REMIC I Regular Interests
and the other assets of REMIC II for the benefit of the holders of
the REMIC II Certificates. The Trustee acknowledges receipt of the
REMIC I Regular Interests (which are uncertificated) and the other
assets of REMIC II and declares that it holds and will hold the
same in trust for the exclusive use and benefit of the holders of
the REMIC II Certificates.
Section 2.06 Representations and
Warranties Concerning the Depositor. The Depositor hereby
represents and warrants to the Trustee, the Master Servicer and the
Securities Administrator as follows:
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(1)
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the Depositor (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and (b) is qualified and in
good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where
the failure so to qualify would not reasonably be expected to have
a material adverse effect on the Depositor’s business as
presently conducted or on the Depositor’s ability to enter
into this Agreement and to consummate the transactions contemplated
hereby;
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(2)
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the Depositor has full corporate
power to own its property, to carry on its business as presently
conducted and to enter into and perform its obligations under this
Agreement;
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(3)
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the execution and delivery by the
Depositor of this Agreement have been duly authorized by all
necessary corporate action on the part of the Depositor; and
neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result
in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those
conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Depositor’s
ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
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(4)
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the execution, delivery and
performance by the Depositor of this Agreement and the consummation
of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or
the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already
been obtained, given or made;
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(5)
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this Agreement has been duly
executed and delivered by the Depositor and, assuming due
authorization, execution and delivery by the other parties hereto,
constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors
generally);
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(6)
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there are no actions, suits or
proceedings pending or, to the knowledge of the Depositor,
threatened against the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement
or (ii) with respect to any other matter which in the judgment of
the Depositor will be determined adversely to the Depositor and
will if determined adversely to the Depositor materially and
adversely affect the Depositor’s ability to enter into this
Agreement or perform its obligations under this Agreement; and the
Depositor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by
this Agreement; and
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(7)
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immediately prior to the transfer
and assignment to the Trustee, each Mortgage Note and each Mortgage
were not subject to an assignment or pledge, and the Depositor had
good and marketable title to and was the sole owner thereof and had
full right to transfer and sell such Mortgage Loan to the Trustee
free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest.
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ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Master Servicer.
(a)The Master Servicer shall supervise, monitor and oversee the
obligation of the Servicer to service and administer the Mortgage
Loans in accordance with the terms of the GreenPoint Servicing
Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with
such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore,
the Master Servicer shall oversee and consult with the Servicer as
necessary from time-to-time to carry out the Master
Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the
Master Servicer by the Servicer and shall cause the Servicer to
perform and observe the covenants, obligations and conditions to be
performed or observed by the Servicer under the GreenPoint
Servicing Agreement. The Master Servicer shall independently and
separately monitor the Servicer’s servicing activities with
respect to each Mortgage Loan, reconcile the results of such
monitoring with such information provided in the previous sentence
on a monthly basis and coordinate corrective adjustments to the
Servicer’s and Master Servicer’s records, and based on
such reconciled and corrected information, the Master Servicer
shall provide such information to the Securities Administrator as
shall be necessary in order for it to prepare the statements
specified in Section 6.04, and prepare any other information and
statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the
Servicer to the Protected Account pursuant to the GreenPoint
Servicing Agreement.
(b) The
Trustee shall furnish the Servicer and the Master Servicer with any
powers of attorney, in substantially the form attached hereto as
Exhibit K, and other documents in form as provided to it necessary
or appropriate to enable the Servicer and the Master Servicer to
service and administer the Mortgage Loans and REO
Property.
(c) The
Trustee shall provide access to the records and documentation in
possession of the Trustee regarding the Mortgage Loans and REO
Property and the servicing thereof to the Certificateholders, the
FDIC, and the supervisory agents and examiners of the FDIC, such
access being afforded only upon reasonable prior written request
and during normal business hours at the office of the Trustee;
provided, however, that, unless otherwise required by law, the
Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that
purpose at a charge that covers the Trustee’s actual
costs.
(d) The
Trustee shall execute and deliver to the Servicer and the Master
Servicer any court pleadings, requests for trustee’s sale or
other documents necessary or desirable to (i) the foreclosure or
trustee’s sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on
the Mortgage Note or Security Instrument; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or
remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-Related
Covenants. For as long as each 2005-1 REMIC shall exist, the
Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such 2005-1 REMIC as a
REMIC, and the Trustee and the Securities Administrator shall
comply with any directions of the Depositor, the Servicer or the
Master Servicer to assure such continuing treatment. In particular,
the Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans or of any investment of deposits in
an Account unless such sale is as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee has
received a REMIC Opinion prepared at the expense of the Trust; and
(b) other than with respect to a substitution pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 or contributions
pursuant to Section 4.08(c) and 4.09(c) of this Agreement, as
applicable, accept any contribution to any 2005-1 REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 3.03 Monitoring of the
Servicer. (a) The Master Servicer shall be responsible for
reporting to the Trustee and the Depositor the compliance by the
Servicer with its duties under the GreenPoint Servicing Agreement.
In the review of the Servicer’s activities, the Master
Servicer may rely upon an officer’s certificate of the
Servicer with regard to the Servicer’s compliance with the
terms of the GreenPoint Servicing Agreement. In the event that the
Master Servicer, in its judgment, determines that the Servicer
should be terminated in accordance with the GreenPoint Servicing
Agreement, or that a notice should be sent pursuant to such
GreenPoint Servicing Agreement with respect to the occurrence of an
event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor and the
Trustee thereof and the Master Servicer shall issue such notice or
take such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer
under the GreenPoint Servicing Agreement, and shall, in the event
that the Servicer fails to perform its obligations in accordance
with the GreenPoint Servicing Agreement, subject to the preceding
paragraph, terminate the rights and obligations of the Servicer
thereunder and act as servicer of the related Mortgage Loans or to
cause the Trustee to enter in to a new GreenPoint Servicing
Agreement with a successor Servicer selected by the Master
Servicer; provided, however, it is understood and acknowledged by
the parties hereto that there will be a period of transition (not
to exceed 90 days) before the actual servicing functions can be
fully transferred to such successor Servicer. Such enforcement,
including, without limitation, the legal prosecution of claims,
termination of the GreenPoint Servicing Agreement and the pursuit
of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it
the
