STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., DEPOSITOR WELLS FARGO BANK, NATIONAL ASSOCIATION, TRUSTEE and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
TRUSTEE
and
EMC MORTGAGE CORPORATION
SERVICER, SELLER AND COMPANY
------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2005
------------------------------------------------------------------------
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
GreenPoint Mortgage Funding Trust 2005-AR5,
Mortgage Pass-Through Certificates, Series 2005-AR5
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee..................................38
Section 2.02 Acceptance of Mortgage Loans by Trustee..................................40
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase Agreement...........42
Section 2.04 Substitution of Mortgage Loans...........................................43
Section 2.05 Issuance of Certificates.................................................44
Section 2.06 Representations and Warranties Concerning the Depositor..................44
Section 2.07 [Reserved]...............................................................44
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer.................................................................46
Section 3.02 REMIC-Related Covenants..................................................47
Section 3.03 Monitoring of Servicers..................................................47
Section 3.04 Fidelity Bond............................................................48
Section 3.05 Power to Act; Procedures.................................................48
Section 3.06 Due-on-Sale Clauses; Assumption Agreements...............................49
Section 3.07 Release of Mortgage Files................................................49
Section 3.08 Documents, Records and Funds in Possession of Servicer To Be Held
for Trustee..............................................................50
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies...................51
Section 3.10 Presentment of Claims and Collection of Proceeds.........................51
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies...................52
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents................................................................52
Section 3.13 Realization Upon Defaulted Mortgage Loans................................52
Section 3.14 Compensation for the Servicer............................................53
Section 3.15 REO Property.............................................................53
Section 3.16 Annual Officer's Certificate as to Compliance............................54
Section 3.17 Annual Independent Accountant's Servicing Report.........................54
Section 3.18 Reports Filed with Securities and Exchange Commission....................55
Section 3.19 UCC......................................................................55
Section 3.20 Optional Purchase of Defaulted Mortgage Loans............................56
ARTICLE IV
ACCOUNTS
Section 4.01 Custodial Account........................................................58
Section 4.02 Permitted Withdrawals and Transfers from the Custodial Account...........59
Section 4.03 Distribution Account.....................................................60
Section 4.04 Permitted Withdrawals and Transfers from the Distribution Account........60
Section 4.05 Class A Reserve Fund, Class I-A-2 Reserve Fund and Subordinate
Reserve Fund.............................................................60
Section 4.06 Statements to the Trustee................................................60
Section 4.07 [Reserved]
Section 4.08 [Reserved]
Section 4.09 Class XP Reserve Account.................................................60
Section 4.10 Certificate Insurance Policy and the Policy Account......................60
ARTICLE V
CERTIFICATES
Section 5.01 Certificates.............................................................63
Section 5.02 Registration of Transfer and Exchange of Certificates....................69
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates........................72
Section 5.04 Persons Deemed Owners....................................................73
Section 5.05 Transfer Restrictions on Residual Certificates...........................73
Section 5.06 Restrictions on Transferability of Certificates..........................74
Section 5.07 ERISA Restrictions.......................................................75
Section 5.08 Rule 144A Information....................................................76
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates........................................77
Section 6.02 Allocation of Losses and Subsequent Recoveries...........................82
Section 6.03 Payments.................................................................84
Section 6.04 Statements to Certificateholders.........................................85
Section 6.05 Monthly Advances.........................................................87
Section 6.06 Compensating Interest Payments...........................................87
Section 6.07 Distributions on REMIC I Regular Interests and REMIC II Regular
Interests................................................................88
ARTICLE VII
THE SERVICER
Section 7.01 Liabilities of the Servicer..............................................89
Section 7.02 Merger or Consolidation of the Servicer..................................89
Section 7.03 Indemnification of the Trustee, the Servicer and the Trustee.............89
Section 7.04 Limitations on Liability of the Servicer and Others......................90
Section 7.05 Servicer Not to Resign...................................................91
Section 7.06 Successor Servicer.......................................................91
Section 7.07 Sale and Assignment of Servicing.........................................91
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default........................................................93
Section 8.02 Trustee to Act; Appointment of Successor.................................94
Section 8.03 Notification to Certificateholders.......................................95
Section 8.04 Waiver of Defaults.......................................................95
Section 8.05 List of Certificateholders...............................................96
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee........................................................97
Section 9.02 Certain Matters Affecting the Trustee....................................99
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans...................100
Section 9.04 Trustee May Own Certificates............................................101
Section 9.05 Trustee's Fees and Expenses.............................................101
Section 9.06 Eligibility Requirements for Trustee....................................101
Section 9.07 Insurance...............................................................102
Section 9.08 Resignation and Removal of the Trustee..................................102
Section 9.09 Successor Trustee.......................................................103
Section 9.10 Merger or Consolidation of Trustee......................................104
Section 9.11 Appointment of Co-Trustee or Separate Trustee...........................104
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration....................................................105
ARTICLE X
TERMINATION
▇▇▇▇▇▇▇ ▇▇.▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ by EMC or its Designee or Liquidation
of the Mortgage Loans...................................................108
Section 10.02 Additional Termination Requirements.....................................110
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties.......................................................112
Section 11.02 Amendment...............................................................112
Section 11.03 Recordation of Agreement................................................113
Section 11.04 Limitation on Rights of Certificateholders..............................113
Section 11.05 Acts of Certificateholders..............................................114
Section 11.06 Governing Law...........................................................115
Section 11.07 Notices.................................................................115
Section 11.08 Severability of Provisions..............................................116
Section 11.09 Successors and Assigns..................................................116
Section 11.10 Article and Section Headings............................................116
Section 11.11 Counterparts............................................................116
Section 11.12 Notice to Rating Agencies...............................................116
APPENDICES
Appendix 1 - Calculation of Class Y Principal Reduction Amounts
Appendix 2 - Calculation of REMIC II Principal Reduction Amounts
EXHIBITS
Exhibit A-1 - Form of Class A Certificates
Exhibit A-2 - Form of Class M Certificates
Exhibit A-3 - Form of Class ▇-▇, ▇-▇ and B-3 Certificates
Exhibit A-4-1 - Form of Class R Certificates
Exhibit A-4-2 - Form of Class R-X Certificates
Exhibit A-5 - Form of Senior Class X Certificates
Exhibit A-6 - Form of Class M-X Certificates
Exhibit A-7 - Form of Class ▇-▇, ▇-▇ and B-6 Certificates
Exhibit A-8 - Form of Class XP Certificate
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 G - Form of Custodial Agreement
Exhibit H - Mortgage Loan Purchase Agreement
Exhibit I - Form of Trustee Limited Power of Attorney
Exhibit J - [Reserved]
Exhibit K - Loan Level Format for Tape Input, Servicer Period Reporting
Exhibit L - Reporting Data for Defaulted Loans
Exhibit M - [Reserved]
Exhibit N - [Reserved]
Exhibit O - Certificate Insurance Policy
149
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of October 1, 2005, among Structured Asset
Mortgage Investments II Inc., a Delaware corporation, as depositor (the "Depositor"), ▇▇▇▇▇
Fargo Bank, National Association, a banking association organized under the laws of the
United States, not in its individual capacity but solely as trustee (the "Trustee") and EMC
Mortgage Corporation, as servicer (in such capacity, the "Servicer"), as company (in such
capacity, the "Company" or "EMC") and, as seller (in such capacity, the "Seller").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the Mortgage Loans from the
Seller. On the Closing Date, the Depositor will sell the Mortgage Loans and certain other
property to the Trust Fund and receive in consideration therefor Certificates evidencing the
entire beneficial ownership interest in the Trust Fund.
The Trustee on behalf of the Trust shall make an election for the assets constituting
REMIC I to be treated for federal income tax purposes as a REMIC. On the Startup Day, the
REMIC I Regular Interests will be designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the assets constituting
REMIC II to be treated for federal income tax purposes as a REMIC. On the Startup Day, the
REMIC II Regular Interests will be designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the assets constituting
REMIC III to be treated for federal income tax purposes as a REMIC. On the Startup Day, the
REMIC III Regular Interests will be designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the assets constituting
REMIC IV to be treated for federal income tax purposes as a REMIC. On the Startup Day, the
REMIC IV Regular Interests will be designated "regular interests" in such REMIC.
The Class R Certificates will evidence ownership of the "residual interest" in each
of REMIC I, REMIC II and REMIC III. The Class R-X Certificates will evidence ownership of
the "residual interest" in REMIC IV.
The Group I 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 $400,404,842. The Sub-Group IIa 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 $293,270,183. The Sub-Group IIb 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 $260,689,828. The
Sub-Group IIc 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 $143,703,912. The Group III 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 $137,649,937. The Group IV 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 $197,667,137.
In consideration of the mutual agreements herein contained, the Depositor, the
Servicer, the Seller, the Company and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases, unless otherwise
expressly provided or unless the context otherwise requires, shall have the meanings
specified in this Article.
Accepted Servicing Practices: With respect to any Mortgage Loan, as applicable,
those customary mortgage servicing practices, including prudent collection and loan
administration procedures, of prudent mortgage servicing institutions that 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 Servicer.
Account: The Custodial Account, the Distribution Account, the Class XP Reserve
Account, the Class A Reserve Fund, the Subordinate Reserve Fund or the Class I-A-2 Reserve
Fund as the context may require.
Accrued Certificate Interest: With respect to the Certificates of any Class or
Component (other than the Class R Certificates, Class R-X Certificates and the Class XP
Certificates) on any Distribution Date, is equal to the amount of interest accrued during
the related Interest Accrual Period at the applicable Pass-Through Rate on the Current
Principal Amount or Notional Amount, as applicable, of such Certificate immediately prior to
such Distribution Date, less (1) in the case of a Senior Certificate, such Certificate's
share of (a) Prepayment Interest Shortfalls on the related Mortgage Loans, to the extent not
covered by Compensating Interest Payments paid by the Servicer, (b) interest shortfalls on
the related Mortgage Loans resulting from the application of the Relief Act or similar state
law, (c) after the applicable Cross-Over Date, the interest portion of any Realized Losses
on the related Mortgage Loans, in each case, allocated thereto in accordance with Section
6.02(g) and (d) any shortfalls resulting from Net Deferred Interest on Mortgage Loans in the
related Loan Group or Sub-Group allocated thereto in accordance with Section 6.01(e), (2) in
the case of a Subordinate Certificate, such Certificate's share of (a) Prepayment Interest
Shortfalls on the Mortgage Loans in each Loan Group or Sub-Group, to the extent not covered
by Compensating Interest Payment paid by the Servicer, (b) interest shortfalls on the
Mortgage Loans in each Loan Group or Sub-Group resulting from the application of the Relief
Act or similar state law, (c) the interest portion of any Realized Losses on the Mortgage
Loans in each Loan Group or Sub-Group allocated thereto in accordance with Section 6.02(g)
and (d) any shortfalls resulting from Net Deferred Interest on the Mortgage Loans in each
Loan Group or Sub-Group allocated thereto in accordance with Section 6.01(e), and (3) in the
case of the Class X Certificates, the amount of any Carryover Shortfall Amount for the
related Class A Certificates or Components (in the case of the Senior Class X Certificates)
and, with respect to the Class II-X Certificates, for the unrelated Components (as described
in Section 6.01(a) herein) and any Carryover Shortfall Amount for the Class M Certificates
and the Class B Certificates (in the case of the Class M-X Certificates). Accrued
Certificate Interest is calculated on the basis of (i) a 360-day year consisting of twelve
30-day months for the Class I-A-2, Class IV-A and Class X Certificates and (ii) a 360-day
year and the actual number of days elapsed in the Interest Accrual Period for the Class A
(other than the Class I-A-2 Certificates and the Class IV-A Certificates), Class M and Class
B Certificates. No Accrued Certificate Interest will be payable with respect to any Class or
Component of Certificates if the outstanding Current Principal Amount of such Certificate
(other than the Class X Certificates) has been reduced to zero.
Affiliate: As to any Person, any other Person controlling, controlled by or under
common control with such Person. "Control" means the power to direct the management and
policies of a Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise. "Controlled" and "Controlling" have meanings
correlative to the foregoing. The Trustee may conclusively presume that a Person is not an
Affiliate of another Person unless a Responsible Officer of the Trustee has actual knowledge
to the contrary.
Aggregate Premium Amount: As to any Distribution Date and each Class of Insured
Certificates, the product of one-twelfth of the Premium Rate and the aggregate of the
Current Principal Amounts of the Insured Certificates on the immediately preceding
Distribution Date, or, in the case of the first Distribution Date, the Closing Date, in each
case after giving effect to distributions of principal made on such Distribution Date.
Agreement: This Pooling and Servicing Agreement and all amendments hereof and
supplements hereto.
Allocable Share: With respect to any Class of Subordinate Certificates and any
Distribution Date, an amount equal to the product of (i) the Subordinate Optimal Principal
Amount after giving effect to the reduction of the Current Principal Amount of the Class M-X
Certificates on such Distribution Date and (ii) the fraction, the numerator of which is the
Current Principal Amount of such Class and the denominator of which is the aggregate Current
Principal Amount of all Classes of the Subordinate Certificates; provided, however, that no
Class of Subordinate Certificates (other than the outstanding Class M Certificates or if no
Class M Certificates are outstanding, the Class of Class B Certificates with the lowest
numerical designation) shall be entitled on any Distribution Date to receive distributions
pursuant to clauses (ii), (iii) and (v) of the definition of Subordinate Optimal Principal
Amount unless the related Class Prepayment Distribution Trigger for such Distribution Date
has been satisfied (any amount distributable pursuant to clauses (ii), (iii) and (v) of the
definition of Subordinate Optimal Principal Amount shall be distributed among the Classes
entitled thereto, pro rata based on their respective Current Principal Amounts); provided,
further, that if on a Distribution Date, the Current Principal Amount of any Class of
Subordinate Certificates for which the related Class Prepayment Distribution Trigger has
been satisfied is reduced to zero, such Class's remaining Allocable Share shall be
distributed to the remaining Classes of Subordinate Certificates which satisfy the related
Class Prepayment Distribution Trigger in reduction of their respective Current Principal
Amounts, sequentially, first to the Class M Certificates and then to the Class B
Certificates, in each case, in the order of their numerical Class designations.
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 Trustee by either (i) an
Opinion of Counsel reasonably acceptable to the Trustee delivered to it by the Servicer or
the Depositor, or (ii) written notice from the appropriate taxing authority as to the
applicability of such state law.
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.
Assumed Final Distribution Date: For the Offered Certificates (other than the Class
II-A-2 Certificates and the Class III-A-2 Certificates) November 25, 2045, and for the Class
II-A-2 Certificates and the Class III-A-2 Certificates, November 25, 2046, or if any such
day is not a Business Day, the next succeeding Business Day.
Available Funds: With respect to any Distribution Date and a Loan Group or
Sub-Group, an amount equal to the aggregate of the following amounts with respect to the
Mortgage Loans in the related Loan Group: (a) all previously undistributed payments on
account of principal (including the principal portion of Scheduled Payments, Principal
Prepayments and the principal portion of Net Liquidation Proceeds) and all previously
undistributed payments on account of interest received after the Cut-off Date and on or
prior to the related Determination Date from the Mortgage Loans in the related Loan Group or
Sub-Group, (b) any Monthly Advances and Compensating Interest Payments by the Servicer with
respect to such Distribution Date in respect of the Mortgage Loans in the related Loan Group
or Sub-Group, (c) any reimbursed amount in connection with losses on investments of deposits
in an account for the related Mortgage Loans and (d) any amount allocated from the Available
Funds of another Loan Group in accordance with Section 6.01(a)(F), except:
(i) all payments that were received before the Cut-off Date;
(ii) all Principal Prepayments and Liquidation Proceeds received after the applicable
Prepayment Period;
(iii) all payments, other than Principal Prepayments, that represent early receipt of
Scheduled Payments due on a date or dates subsequent to the related Due Date;
(iv) amounts received on particular Mortgage Loans as late payments of principal or interest
and respecting which, and to the extent that, there are any unreimbursed Monthly Advances;
(v) amounts representing Monthly Advances determined to be Nonrecoverable Advances;
(vi) any investment earnings on amounts on deposit in the Custodial Account, the Class A
Reserve Fund, the Subordinate Reserve Fund, the Class I-A-2 Reserve Fund and the
Distribution Account and amounts permitted to be withdrawn from the Custodial Account and
the Distribution Account pursuant to this Agreement;
(vii) amounts needed to pay the Servicing Fee or to reimburse the Servicer for amounts due
under this Agreement to the extent such amounts have not been retained by, or paid
previously to, the Servicer;
(viii) amounts applied to pay any fees with respect to any lender-paid primary mortgage
insurance policy (if any);
(ix) any expenses or other amounts reimbursable to the Trustee, the Servicer and the
Custodian pursuant to Section 7.04(c) or Section 9.05; and
(x) the portion of the Aggregate Premium Amount payable on such
Distribution Date to the Certificate Insurer.
Average Loss Severity Percentage: With respect to any Distribution Date and each
Loan Group, the percentage equivalent of a fraction, the numerator of which is the sum of
the Loss Severity Percentages for each Mortgage Loan in such Loan Group which had a Realized
Loss and the denominator of which is the number of Mortgage Loans in the related Loan Group
that had Realized Losses.
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified in 11
U.S.C. §§ 101-1330.
Bankruptcy Loss: With respect to any Mortgage Loan, any Deficient Valuation or Debt
Service Reduction related to such Mortgage Loan as reported by the Servicer.
Book-Entry Certificates: Initially, all Classes of Certificates other than the
Private Certificates 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 Custodian or the Servicer are authorized or
obligated by law or executive order to be closed.
Carryover Shortfall Amount: For any Distribution Date and for the Class I-A-1, Class
II-A, Class III-A, Class M and Class B Certificates, an amount equal to the sum of: (i) the
excess, if any, of (a) the amount of Accrued Certificate Interest that would have accrued on
such class at a pass-through rate equal to the lesser of (I) One-Month LIBOR plus the
related Margin and (II) 10.50%, over (b) the amount of Accrued Certificate Interest on such
Class for such Distribution Date less the amount of any Net Deferred Interest added to the
Current Principal Amount of such Class on that Distribution Date; (ii) the portion of the
amount described in clause (i) above remaining unpaid from prior Distribution Dates; and
(iii) one month's interest at the rate described in clause (i)(a) above on the amount
described in clause (ii) above.
Cash Liquidation: As to any defaulted Mortgage Loan other than a Mortgage Loan as to
which an REO Acquisition occurred, a determination by the Servicer that it has received all
Insurance Proceeds, Liquidation Proceeds and other payments or cash recoveries which the
Servicer reasonably and in good faith expects to be finally recoverable with respect to such
Mortgage Loan.
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-7 and A-8 with the blanks
therein appropriately completed.
Certificate Group: With respect to Loan Group I, the Group I Certificates, with
respect to Loan Group II, the Group II Certificates, with respect to Loan Group III, the
Group III Certificates, and with respect to Loan Group IV, the Group IV Certificates.
Certificate Insurance Policy: The Certificate Insurance Policy, dated as of October
31, 2005, endorsed by the Certificate Insurer to the Trustee on behalf of the Holders of the
Insured Certificates, a copy of which is attached hereto as Exhibit O.
Certificate Insurer: Ambac Assurance Corporation.
Certificate Insurer Default: The existence and continuance of any of the following:
(a) a failure by the Certificate Insurer to make a payment required under the Certificate
Insurance Policy in accordance with its terms; (b) the entry of a decree or order of a court
or agency having jurisdiction in respect of the Certificate Insurer in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar law
appointing a conservator or receiver or liquidator or other similar official of the
Certificate Insurer or of any substantial part of its property, or the entering of an order
for the winding up or liquidation of the affairs of the Certificate Insurer and the
continuance of any such decree or order undischarged or unstayed and in force for a period
of 90 consecutive days; (c) the Certificate Insurer shall consent to the appointment of a
conservator or receiver or liquidator or other similar official in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Certificate Insurer or of or relating to all or substantially all of its
property; or (d) the Certificate Insurer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
Certificate Owner: Any Person who is the beneficial owner of a Certificate
registered in the name of the Depository or its nominee.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, any of Class I-A-1, Class I-A-2, Class
II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1, Class IV-A-2, Class I-X-1,
Class I-X-2, Class II-X-1, Class II-X-2, Class II-X-3, Class III-X-1, Class IV-X-1, Class
IV-X-2, Class M-X, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class R, Class R-X and Class XP
Certificates.
Class A Certificates: The Class I-A, Class II-A, Class III-A and Class IV-A
Certificates.
Class A Reserve Fund: As described in Section 4.05 herein.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates.
Class I-A Certificates: The Class I-A-1 Certificates and the Class I-A-2 Certificates.
Class I-A-2 Reserve Fund: As described in Section 4.05 herein.
Class I-X Certificates: The Class I-X-1 Certificates and the Class I-X-2
Certificates.
Class I-X-1 Notional Amount: With respect to any Distribution Date and the Class
I-X-1 Certificates, the Current Principal Amount of the Class I-A-1 Certificates and the
Class I-X-1 Certificates (before taking into account the payment of principal on such
Certificates on such Distribution Date).
Class I-X-2 Notional Amount: With respect to any Distribution Date and the Class
I-X-2 Certificates, the Current Principal Amount of the Class I-A-2 Certificates and the
Class I-X-2 Certificates (before taking into account the payment of principal on such
Certificates on such Distribution Date).
Class II-A Certificates: The Class II-A-1 Certificates and the Class II-A-2
Certificates.
Class II-A-1 Certificates: The Class II-A-1a, Class II-A-1b and Class II-A-1c
Components.
Class II-A-2 Certificates: The Class II-A-2a, Class II-A-2b and Class II-A-2c
Components.
Class II-X Certificates: The Class II-X-1, Class II-X-2 and Class II-X-3
Certificates.
Class II-X-1 Notional Amount: With respect to any Distribution Date and the Class
II-X-1 Certificates, the Current Principal Amount of the Class II-A-1a Component, the Class
II-A-2a Component and the Class II-X-1 Certificates (before taking into account the payment
of principal on such Components or Certificates on such Distribution Date).
Class II-X-2 Notional Amount: With respect to any Distribution Date and the Class
II-X-2 Certificates, the Current Principal Amount of the Class II-A-1b Component, the Class
II-A-2b Component and the Class II-X-2 Certificates (before taking into account the payment
of principal on such Components or Certificates on such Distribution Date).
Class II-X-3 Notional Amount: With respect to any Distribution Date and the Class
II-X-3 Certificates, the Current Principal Amount of the Class II-A-1c Component, the Class
II-A-2c Component and the Class II-X-3 Certificates (before taking into account the payment
of principal on such Components or Certificates on such Distribution Date).
Class III-A Certificates: The Class III-A-1 Certificates and the Class III-A-2
Certificates.
Class III-X-1 Notional Amount: With respect to any Distribution Date and the Class
III-X-1 Certificates, the Current Principal Amount of the Class III-A-1, Class III-A-2 and
Class III-X-1 Certificates (before taking into account the payment of principal on such
Certificates on such Distribution Date).
Class IV-A Certificates: The Class IV-A-1 Certificates and the Class IV-A-2
Certificates.
Class IV-X Certificates: The Class IV-X-1 Certificates and the Class IV-X-2
Certificates.
Class IV-X-1 Notional Amount: With respect to any Distribution Date and the Class
IV-X-1 Certificates, the Current Principal Amount of the Class IV-A-1 Certificates and the
Class IV-X-1 Certificates (before taking into account the payment of principal on such
Certificates on such Distribution Date).
Class IV-X-2 Notional Amount: With respect to any Distribution Date and the Class
IV-X-2 Certificates, the Current Principal Amount of the Class IV-A-2 Certificates and the
Class IV-X-2 Certificates (before taking into account the payment of principal on such
Certificates on such Distribution Date).
Class M Certificates: The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and
Class M-6 Certificates.
Class M-X Notional Amount: With respect to any Distribution Date and the Class M-X
Certificates, the aggregate Current Principal Amount of the Class M-X, Class M and the Class
B Certificates (before taking into account the payment of principal on such Certificates on
such Distribution Date).
Class Prepayment Distribution Trigger: For a Class of Subordinate Certificates
(other than the Class M-X Certificates) for any Distribution Date, the Class Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a percentage), the numerator
of which is the aggregate Current Principal Amount of such Class and each Class of
Subordinate Certificates, respectively, subordinate thereto, if any, and the denominator of
which is the Scheduled Principal Balance of all of the Mortgage Loans as of the related Due
Date, equals or exceeds such percentage calculated as of the Closing Date.
Class R Certificate: Any one of the Class R Certificates substantially in the form
annexed hereto as Exhibit A-4-1 and evidencing ownership of interests designated as
"residual interests" in REMIC I, REMIC II and REMIC III for purposes of the REMIC
Provisions. Component I of the Class R Certificates is designated as the sole class of
"residual interest" in REMIC I, Component II of the Class R Certificates is designated as the
sole class of "residual interest" in REMIC II and Component III of the Class R Certificates
is designated as the sole class of "residual interest" in REMIC III.
Class R-X Certificate: Any one of the Class R-X Certificates substantially in the
form annexed hereto as Exhibit A-4-2 and evidencing ownership of the "residual interest" in
REMIC IV for purposes of the REMIC Provisions.
Class R Deposit: The $100 deposit into the Distribution Account by the Depositor on
the Closing Date to pay the Class R Certificates in accordance with Section 6.01(a) on the
Distribution Date occurring in November 2005.
Class X Certificates: The Senior Class X Certificates and the Class M-X Certificates.
Class XP Reserve Account: The account established and maintained by the Trustee
pursuant to Section 4.09 hereof.
Class Y Principal Reduction Amounts: For any Distribution Date, the amounts by which
the Uncertificated Principal Balances of the Class Y Regular Interests will be reduced on
such Distribution Date by the allocation of Realized Losses and the distribution of
principal, determined as described in Appendix 1.
Class Y Regular Interests: The Class Y-1 Regular Interest, the Class Y-2 Regular
Interest, the Class Y-3 Regular Interest and the Class Y-4 Regular Interest..
Class Y-1 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Y-1 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Y-1 Regular Interest on such
Distribution Date.
Class Y-1 Principal Reduction Amount : The Class Y Principal Reduction Amount for the
Class Y-1 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Y-1 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Y-2 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Y-2 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Y-2 Regular Interest on such
Distribution Date.
Class Y-2 Principal Reduction Amount: The Class Y Principal Reduction Amount for the
Class Y-2 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Y-2 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Y-3 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Y-3 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Y-3 Regular Interest on such
Distribution Date.
Class Y-3 Principal Reduction Amount: The Class Y Principal Reduction Amount for the
Class Y-3 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Y-3 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Y-4 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Y-4 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Y-4 Regular Interest on such
Distribution Date.
Class Y-4 Principal Reduction Amount: The Class Y Principal Reduction Amount for the
Class Y-4 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Y-4 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Z Principal Reduction Amounts: For any Distribution Date, the amounts by which
the Uncertificated Principal Balances of the Class Z Regular Interests will be reduced on
such Distribution Date by the allocation of Realized Losses and the distribution of
principal, which shall be in each case the excess of (A) the sum of (x) the excess of the
REMIC I Available Distribution Amount for the related Group (i.e. the "related Group" for
the Class Z-1 Regular Interest is the Group I Mortgage Loans, the "related Group" for the
Class Z-2 Regular Interest is the Group II Mortgage Loans, the "related Group" for the Class
Z-3 Regular Interest is the Group III Mortgage Loans and the "related Group" for the Class
Z-4 Regular Interest is the Group IV Mortgage Loans) over the sum of the amounts thereof
distributable (i) in respect of interest on such Class Z Regular Interest and the related
Class Y Regular Interest, (ii) to such Class Z Regular Interest and the related Class Y
Regular Interest pursuant to clause (e)(i) of the definition of "REMIC I Distribution
Amount" and (iii) in the case of the Group I Mortgage Loans, to the Class R Certificates and
(y) the amount of Realized Losses allocable to principal for the related Group over (B) the
Class Y Principal Reduction Amount for the related Group.
Class Z Regular Interests: The Class Z-1 Regular Interest, the Class Z-2 Regular
Interest, the Class Z-3 Regular Interest and the Class Z-4 Regular Interest.
Class Z-1 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Z-1 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Z-1 Regular Interest on such
Distribution Date.
Class Z-1 Principal Reduction Amount: The Class Z Principal Reduction Amount for the
Class Z-1 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Z-1 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Z-2 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Z-2 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Z-2 Regular Interest on such
Distribution Date.
Class Z-2 Principal Reduction Amount : The Class Z Principal Reduction Amount for the
Class Z-2 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Z-2 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Z-3 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Z-3 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Z-3 Regular Interest on such
Distribution Date.
Class Z-3 Principal Reduction Amount : The Class Z Principal Reduction Amount for the
Class Z-3 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Z-3 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Class Z-4 Principal Distribution Amount: For any Distribution Date, the excess, if
any, of the Class Z-4 Principal Reduction Amount for such Distribution Date over the
principal portion of Realized Losses allocated to the Class Z-4 Regular Interest on such
Distribution Date.
Class Z-4 Principal Reduction Amount : The Class Z Principal Reduction Amount for the
Class Z-4 Regular Interest as determined pursuant to the provisions of the Appendix 1.
Class Z-4 Regular Interest: The uncertificated undivided beneficial interest in
REMIC I which constitutes a REMIC I Regular Interest and is entitled to distributions as set
forth herein.
Closing Date: October 31, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Company: EMC.
Compensating Interest Payment: As defined in Section 6.06.
Component Group: With respect to Sub-Group IIa, the Sub-Group IIa Components, with
respect to Sub-Group IIb, the Sub-Group IIb Components, and with respect to Sub-Group IIc,
the Sub-Group IIc Components.
Components: The Class II-A-1a, Class II-A-2a, Class II-A-1b, Class II-A-2b, Class
II-A-1c and Class II-A-2c Components.
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. For
the purpose of registration and transfer and exchange only, the Corporate Trust Office of
the Trustee shall be located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Group, GreenPoint Mortgage Funding 2005-AR5. The Corporate
Trust Office of the Trustee at the date of the execution of this Agreement for all other
purposes is located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Group, GreenPoint Mortgage Funding 2005-AR5.
Cross-Over Date: The first Distribution Date on which the aggregate Current
Principal Amount of the Subordinate Certificates has been reduced to zero.
Current Principal Amount: With respect to any Class A, Class X, Class M or Class B
Certificate or Component of the Class II-A Certificates as of any Distribution Date, the
initial principal amount of such Certificate or Component plus the amount of any Net
Deferred Interest allocated thereto on the related Distribution Date and all previous
Distribution Dates plus, in the case of the Subordinate Certificates, any Subsequent
Recoveries added to the Current Principal Amount of such Certificates or Component pursuant
to Section 6.02(h) hereof, and reduced by (i) all amounts distributed on previous
Distribution Dates on such Certificate or Component with respect to principal, (ii) the
principal portion of all Realized Losses (other than Realized Losses resulting from Debt
Service Reductions) allocated prior to such Distribution Date to such Certificate or
Component, taking account of the Loss Allocation Limitation, and (iii) in the case of a
Subordinate Certificate, such Certificate's pro rata share, if any, of the applicable
Subordinate Certificate Writedown Amount for previous Distribution Dates. With respect to
any Class or Component of Certificates, the Current Principal Amount thereof will equal the
sum of the Current Principal Amounts of all Certificates or Components in such Class. The
initial Current Principal Amount for each Class or Component of Certificates is set forth in
Section 5.01(c)(iv). Notwithstanding the foregoing, solely for purposes of giving consents,
directions, waivers, approvals, requests and notices, the Class R Certificates after the
Distribution Date on which the principal thereof has been paid in full shall be deemed to
have a Current Principal Amount equal to the Current Principal Amount thereof on the day
immediately preceding such Distribution Date.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a Principal
Prepayment in full.
Custodial Account: The trust account or accounts created and maintained by the
Servicer pursuant to Section 4.01, which shall be denominated "▇▇▇▇▇ Fargo Bank, National
Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc.,
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series
2005-AR5, Custodial Account." The Custodial Account shall be an Eligible Account.
Custodial Agreement: An agreement, dated as of the Closing Date among the Depositor,
the Servicer, the Trustee and the Custodian in substantially the form of Exhibit G hereto.
Custodian: ▇▇▇▇▇ Fargo Bank, National Association, or any successor custodian
appointed pursuant to the provisions hereof and of the Custodial Agreement.
Cut-off Date: October 1, 2005.
Cut-off Date Balance: Approximately $1,433,385,839.
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.
Deferred Interest: The amount of interest which is deferred and added to the
Outstanding Principal Balance of a Mortgage Loan due to negative amortization on such
Mortgage Loan.
Deficiency Amount: (a) For any Distribution Date prior to the final Distribution
Date, the sum of (1) the excess, if any, of the current interest on the Class II-A-2
Certificates and Class III-A-2 Certificates, net of any Net Interest Shortfalls, Carryover
Shortfall Amounts or Net Deferred Interest over the amount of Available Funds available to
pay the current interest on the Class II-A-2 Certificates and Class III-A-2 Certificates on
such Distribution Date and (2) the amount, if any, of any Realized Losses allocable to the
Class II-A-2 Certificates and Class III-A-2 Certificates on such Distribution Date (after
giving effect to all distributions to be made thereon on such Distribution Date other than
pursuant to the Certificate Insurance Policy) and (b) for the final Distribution Date, the
sum of (x) the amount set forth in clause (a)(1) above and (y) the outstanding Current
Principal Amount of the Class II-A-2 Certificates and Class III-A-2 Certificates, after
giving effect to all payments of principal on the Class II-A-2 Certificates and Class
III-A-2 Certificates on such Final Distribution Date, other than pursuant to a claim on the
Policy on that distribution date.
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.
Depositor: Structured Asset Mortgage Investments II Inc., a Delaware corporation, or
its successors in interest.
Depository: The Depository Trust Company, the nominee of which is Cede & Co., or any
successor thereto.
Depository Agreement: The meaning specified in Section 5.01(a) hereof.
Depository Participant: A broker, dealer, bank or other financial institution or
other Person for whom from time to time the Depository effects book-entry transfers and
pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial bank,
federal savings bank, mutual savings bank or savings and loan association) or trust company
(which may include the Trustee), the deposits of which are fully insured by the FDIC to the
extent provided by law.
Determination Date: The 15th day (or if such 15th day is not a Business Day, the
Business Day immediately preceding such 15th day) of the month of the Distribution Date.
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 ▇▇▇▇▇▇▇ 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-AR5 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 by the
Trustee pursuant to Section 4.03, which shall be denominated "▇▇▇▇▇ Fargo Bank, National
Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc.,
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series
2005-AR5 - Distribution Account." The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The second Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in the month immediately
following the month of the Closing Date, or, if such 25th day is not a Business Day, the
Business Day immediately following.
DTC Custodian: ▇▇▇▇▇ Fargo Bank, National Association, or its successors in interest
as custodian for the Depository.
Due Date: With respect to each Mortgage Loan, the date in each month on which its
Scheduled Payment is due if such due date is the first day of a month and otherwise is
deemed to be the first day of the following month.
Due Period: With respect to any Distribution Date and each Mortgage Loan, the period
commencing on the second day of the month preceding the calendar month in which the
Distribution Date occurs and ending at the close of business on the first day of the month
in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal or state
chartered depository institution (A) the short-term obligations of which are rated A-1 or
better by Standard & Poor's and P-1 by ▇▇▇▇▇'▇ at the time of any deposit therein or (B)
insured by the FDIC (to the limits established by such Corporation), the uninsured deposits
in which account are otherwise secured such that, as evidenced by an Opinion of Counsel
(obtained by the Person requesting that the account be held pursuant to this clause (i))
delivered to the Trustee prior to the establishment of such account, the Certificateholders
will have a claim with respect to the funds in such account and a perfected first priority
security interest against any collateral (which shall be limited to Permitted Investments,
each of which shall mature not later than the Business Day immediately preceding the
Distribution Date next following the date of investment in such collateral or the
Distribution Date if such Permitted Investment is an obligation of the institution that
maintains the Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with which such account
is maintained, (ii) a segregated trust account or accounts maintained with a federal or
state chartered depository institution or trust company with trust powers acting in its
fiduciary capacity or (iii) a segregated account or accounts of a depository institution
acceptable to the Rating Agencies (as evidenced in writing by the Rating Agencies that use
of any such account as the Distribution Account will not have an adverse effect on the
then-current ratings assigned to the Classes of Certificates then rated by the Rating
Agencies). Eligible Accounts may bear interest.
EMC: EMC Mortgage Corporation, and any successor thereto.
Endorsement: As set forth in the Certificate Insurance Policy.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 8.01.
Excess Liquidation Proceeds: To the extent that such amount is not required by law
to be paid to the related Mortgagor, the amount, if any, by which Liquidation Proceeds with
respect to a Liquidated Mortgage Loan exceed the sum of (i) the Outstanding Principal
Balance of such Mortgage Loan and accrued but unpaid interest at the related Mortgage
Interest Rate through the last day of the month in which the related Liquidation Date
occurs, plus (ii) related Liquidation Expenses.
▇▇▇▇▇▇ ▇▇▇: Federal National Mortgage Association and any successor thereto.
▇▇▇▇▇▇ Mae Guide: The ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide
and all amendments or additions thereto.
FDIC: Federal Deposit Insurance Corporation and any successor thereto.
Final Certification: The certification substantially in the form of Exhibit Three to
the Custodial Agreement.
Final Maturity Date: November 25, 2045.
Fiscal Quarter: December 1 through the last day of February, March 1 through May 31,
June 1 through August 31, or September 1 through November 30, as applicable.
Fractional Undivided Interest: With respect to any Class of Certificates (other than
the Class XP Certificates), the fractional undivided interest evidenced by any Certificate
of such Class the numerator of which is the Current Principal Amount of such Certificate and
the denominator of which is the Current Principal Amount of such Class. With respect to the
Class XP Certificates, the percentage interest stated thereon. With respect to the
Certificates in the aggregate, the fractional undivided interest evidenced by (i) a Residual
Certificate will be deemed to equal 1.0% and (ii) a Certificate of any other Class will be
deemed to equal 99.0% multiplied by a fraction, the numerator of which is the Current
Principal Amount of such Certificate and the denominator of which is the aggregate Current
Principal Amount of all the Certificates.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, formerly the Federal Home Loan Mortgage Corporation, and
any successor thereto.
▇▇▇▇▇▇▇ Mac Guide: The ▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac Servicing
Guide and all amendments or additions thereto.
Global Certificate: Any Private Certificate registered in the name of the Depository
or its nominee, beneficial interests in which are reflected on the books of the Depository
or on the books of a Person maintaining an account with such Depository (directly or as an
indirect participant in accordance with the rules of such depository).
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in the
related Mortgage Note and indicated on the Mortgage Loan Schedule which percentage is added
to the related Index on each Interest Adjustment Date to determine (subject to rounding, the
minimum and maximum Mortgage Interest Rate and the Periodic Rate Cap) the Mortgage Interest
Rate until the next Interest Adjustment Date.
Group I Certificates: The Class I-A-1, Class I-A-2, Class I-X-1 and Class I-X-2
Certificates.
Group I Mortgage Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule.
Group II Certificates: The Sub-Group IIa, Sub-Group IIb and Sub-Group IIc
Certificates.
Group II Mortgage Loans: The Sub-Group IIa, Sub-Group IIb and Sub-Group IIc Mortgage
Loans.
Group III Certificates: The Class III-A-1, Class III-A-2 and Class III-X-1
Certificates.
Group III Mortgage Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule.
Group IV Certificates: The Class IV-A-1, Class IV-A-2, Class IV-X-1 and Class IV-X-2
Certificates.
Group IV Mortgage Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule.
Holder: The Person in whose name a Certificate is registered in the Certificate
Register, except that, subject to Sections 11.02(b) and 11.05(e), solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the name of the
Depositor, the Servicer or the Trustee or any Affiliate thereof shall be deemed not to be
outstanding and the Fractional Undivided Interest evidenced thereby shall not be taken into
account in determining whether the requisite percentage of Fractional Undivided Interests
necessary to effect any such consent has been obtained.
Indemnified Persons: The Trustee and the Custodian 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 Servicer and of any Affiliate
of the Depositor or the Servicer, (b) does not have any direct financial interest or any
material indirect financial interest in the Depositor or the Servicer or any Affiliate of
the Depositor or the Servicer and (c) is not connected with the Depositor or the 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.
Insured Amount: As defined in the Certificate Insurance Policy.
Insured Certificates: Each of the Class II-A-2 Certificates and the Class III-A-2
Certificates.
Interest Accrual Period: For each Class of Class A (other than the Class I-A-2
Certificates and the Class IV-A Certificates), Class M and Class B Certificates and for any
Distribution Date, the period commencing on the Distribution Date in the month preceding the
month in which a Distribution Date occurs (or the Closing Date, in the case of the first
Interest Accrual Period) and ending on the day immediately prior to such Distribution Date.
For each Class of Class I-A-2, Class IV-A and Class X Certificates and for any Distribution
Date, the one-month period preceding the month in which such Distribution Date occurs. For
purposes of clarification, if the Closing Date occurs in a month that contains thirty one
(31) days, the first Interest Accrual Period shall include the 31st day of such month.
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 Shortfall: With respect to any Distribution Date and each Mortgage Loan
that during the related Prepayment Period was the subject of a Principal Prepayment or
constitutes a Relief Act Mortgage Loan, an amount determined as follows:
(a) Partial principal prepayments (other than any collections on REO
Property treated as a Curtailment pursuant to Section 3.15(b)) received during the relevant
Prepayment Period: The difference between (i) one month's interest at the applicable Net
Rate on the amount of such prepayment and (ii) the amount of interest for the calendar month
of such prepayment (adjusted to the applicable Net Rate) received at the time of such
prepayment;
(b) Principal prepayments in full received during the relevant Prepayment Period: The
difference between (i) one month's interest at the applicable Net Rate on the Scheduled
Principal Balance of such Mortgage Loan immediately prior to such prepayment and (ii) the
amount of interest for the calendar month of such prepayment (adjusted to the applicable Net
Rate) received at the time of such prepayment; and
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage Loan, the excess of (i) 30
days' interest (or, in the case of a principal prepayment in full, interest to the date of
prepayment) on the Scheduled Principal Balance thereof (or, in the case of a principal
prepayment in part, on the amount so prepaid) at the related Net Rate over (ii) 30 days'
interest (or, in the case of a principal prepayment in full, interest to the date of
prepayment) on such Scheduled Principal Balance (or, in the case of a Principal Prepayment
in part, on the amount so prepaid) at the annual interest rate required to be paid by the
Mortgagor as limited by application of the Relief Act.
Interest-Only Certificates: The Senior Class X Certificates and the Class M-X
Certificates.
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 for
the first Interest Accrual Period, October 27, 2005. With respect to each Class of Offered
Certificates and any Interest Accrual Period thereafter, the second LIBOR Business Day
preceding the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the Servicer has
determined that all amounts it expects to recover from or on account of such Mortgage Loan
have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on which
the Servicer has certified that such Mortgage Loan has become a Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation, unreimbursed
expenses paid or incurred by or for the account of the Servicer in connection with the
liquidation of such Mortgage Loan and the related Mortgage Property, such expenses including
(a) property protection expenses, (b) property sales expenses, (c) foreclosure and sale
costs, including court costs and reasonable attorneys' fees, and (d) similar expenses
reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: 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 Group: Loan Group I, Loan Group II, Loan Group III or Loan Group IV, as
applicable.
Loan Group I: The group of Mortgage Loans designated as belonging to Loan Group I on
the Mortgage Loan Schedule.
Loan Group II: Sub-Group IIa, Sub-Group IIb and Sub-Group IIc.
Loan Group III: The group of Mortgage Loans designated as belonging to Loan
Group III on the Mortgage Loan Schedule.
Loan Group IV: The group of Mortgage Loans designated as belonging to Loan Group IV
on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the original Outstanding Principal Balance of the
related Mortgage Loan and the denominator of which is the Original Value of the related
Mortgaged Property.
Loss Allocation Limitation: The meaning specified in Section 6.02(c) hereof.
Loss Severity Percentage: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the amount of Realized Losses incurred
on a Mortgage Loan and the denominator of which is the Scheduled Principal Balance of such
Mortgage Loan immediately prior to the liquidation of such Mortgage Loan.
Lost Notes: The original Mortgage Notes that have been lost, as indicated on the
Mortgage Loan Schedule.
Margin: With respect to any Distribution Date on or prior to the first possible
Optional Termination Date and (i) the Class I-A-1 Certificates, 0.270% per annum, (ii) the
Class I-A-2 Certificates, 2.55% per annum, (iii) the Class II-A-1a Component, 0.280% per
annum, (iv) the Class II-A-1b Component, 0.280% per annum, (v) the Class II-A-1c Component,
0.280% per annum, (vi) the Class II-A-2a Component, 0.270% per annum, (vii) the Class
II-A-2b Component, 0.270% per annum, (viii) the Class II-A-2c Component, 0.270% per annum,
(ix) the Class III-A-1 Certificates, 0.280% per annum, (x) the Class III-A-2 Certificates,
0.270% per annum, (xi) the Class IV-A-1 Certificates, 2.00% per annum, (xii) the Class
IV-A-2 Certificates, 2.25% per annum, (xiii) the Class M-1 Certificates, 0.620% per annum,
(xiv) the Class M-2 Certificates, 0.650% per annum; (xv) the Class M-3 Certificates, 0.680%
per annum; (xvi) the Class M-4 Certificates, 0.850% per annum; (xvii) the Class M-5
Certificates, 1.000% per annum; (xviii) the Class M-6 Certificates, 1.100% per annum; (xix)
the Class B-1 Certificates, 1.350% per annum; (xx) the Class B-2 Certificates, 1.600% per
annum; (xxi) the Class B-3 Certificates, 2.100% per annum; (xxii) the Class B-4
Certificates, 2.100% per annum; (xxiii) the Class B-5 Certificates, 2.100% per annum; and
(xxiv) the Class B-6 Certificates, 2.100% per annum; and with respect to any Distribution
Date after the first possible Optional Termination Date and (i) the Class I-A-1
Certificates, 0.540% per annum, (ii) the Class I-A-2 Certificates, 2.55% per annum, (iii)
the Class II-A-1a Component, 0.560% per annum, (iv) the Class II-A-1b Component, 0.560% per
annum, (v) the Class II-A-1c Component, 0.560% per annum, (vi) the Class II-A-2a Component,
0.540% per annum, (vii) the Class II-A-2b Component, 0.540% per annum, (viii) the Class
II-A-2c Component, 0.540% per annum, (ix) the Class III-A-1 Certificates, 0.560% per annum,
(x) the Class III-A-2 Certificates, 0.540% per annum, (xi) the Class IV-A-1 Certificates,
2.00% per annum, (xii) the Class IV-A-2 Certificates, 2.25% per annum, (xiii) the Class M-1
Certificates, 0.930% per annum, (xiv) the Class M-2 Certificates, 0.975% per annum; (xv) the
Class M-3 Certificates, 1.020% per annum; (xvi) the Class M-4 Certificates, 1.275% per
annum; (xvii) the Class M-5 Certificates, 1.500% per annum; (xviii) the Class M-6
Certificates, 1.650% per annum; (xix) the Class B-1 Certificates, 2.025% per annum; (xx) the
Class B-2 Certificates, 2.400% per annum; (xxi) the Class B-3 Certificates, 3.150% per
annum; (xxii) the Class B-4 Certificates, 3.150% per annum; (xxiii) the Class B-5
Certificates, 3.150% per annum; and (xxiv) the Class B-6 Certificates, 3.150% per annum.
Marker Rate: With respect to the Class I-X-1 Certificates or REMIC III Regular
Interest I-X-1 and any Distribution Date, in relation to the REMIC II Regular Interests, a
per annum rate equal to two (2) times the weighted average of the Uncertificated REMIC II
Pass Through Rates for REMIC II Regular Interest LT2 and REMIC II Regular Interest LT3.
With respect to the Class I-X-2 Certificates or REMIC III Regular Interest I-X-2 and any
Distribution Date, in relation to the REMIC II Regular Interests, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC II Pass Through Rates for
REMIC II Regular Interest LT5 and REMIC II Regular Interest LT6. With respect to the Class
II-X-1 Certificates or REMIC III Regular Interest II-X-1 and any Distribution Date, in
relation to the REMIC II Regular Interests, a per annum rate equal to two (2) times the
weighted average of the Uncertificated REMIC II Pass Through Rates for REMIC II Regular
Interest LT9 and REMIC II Regular Interest LT10. With respect to the Class II-X-2
Certificates or the REMIC III Regular Interest II-X-2 and any Distribution Date, in relation
to the REMIC II Regular Interests, a per annum rate equal to two (2) times the weighted
average of the Uncertificated REMIC II Pass Through Rates for REMIC II Regular Interest LT12
and REMIC II Regular Interest LT13. With respect to the Class II-X-3 Certificates or REMIC
III Regular Interest II-X-3 and any Distribution Date, in relation to the REMIC II Regular
Interests, a per annum rate equal to two (2) times the weighted average of the
Uncertificated REMIC II Pass Through Rates for REMIC II Regular Interest LT15 and REMIC II
Regular Interest LT16. With respect to the Class III-X-1 Certificates or REMIC III Regular
Interest III-X-1 and any Distribution Date, in relation to the REMIC II Regular Interests, a
per annum rate equal to two (2) times the weighted average of the Uncertificated REMIC II
Pass Through Rates for REMIC II Regular Interest LT19 and REMIC II Regular Interest LT20.
With respect to the Class IV-X-1 Certificates or REMIC III Regular Interest IV-X-1 and any
Distribution Date, in relation to the REMIC II Regular Interests, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC II Pass Through Rates for
REMIC II Regular Interest LT23 and REMIC II Regular Interest LT24. With respect to the
Class IV-X-2 Certificates or REMIC III Regular Interest IV-X-2 and any Distribution Date, in
relation to the REMIC II Regular Interests, a per annum rate equal to two (2) times the
weighted average of the Uncertificated REMIC II Pass Through Rates for REMIC II Regular
Interest LT26 and REMIC II Regular Interest LT27. With respect to the Class M-X
Certificates or REMIC III Regular Interest M-X and any Distribution Date, in relation to the
REMIC II Regular Interests, a per annum rate equal to two (2) times the weighted average of
the Uncertificated REMIC II Pass-Through Rates for REMIC II Regular Interest LT29 and REMIC
II Regular Interest LT30.
Material Defect: The meaning specified in Section 2.02(a).
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage Interest Rate
can adjust in accordance with its terms, regardless of changes in the applicable Index.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor thereto.
MERS® System: The system of recording transfers of Mortgage Loans electronically
maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered with MERS on
the MERS® System.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage Interest Rate
can adjust in accordance with its terms, regardless of changes in the applicable Index.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly Advance: An advance of interest required to be made by the Servicer or the
Trustee as successor servicer pursuant to Section 6.05.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first priority
lien on an estate in fee simple or leasehold interest in real property securing a Mortgage
Loan.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining to a
particular Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time to time
on any Mortgage Loan pursuant to the related Mortgage Note, which rate is initially equal to
the "Mortgage Interest Rate" set forth with respect thereto on the Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trust pursuant to
Section 2.01 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
October 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 H.
Mortgage Loan Documents: The original Mortgage Loan legal documents held by the
Custodian.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B with respect to
the Mortgage Loans and divided into Loan Groups as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement, 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 Deferred Interest: On any Distribution Date for each Loan Group or Sub-Group,
Deferred Interest on the related Mortgage Loans during the related Due Period net of
Principal Prepayments in full, partial Principal Prepayments, Net Liquidation Proceeds,
Repurchase Proceeds and Scheduled Principal, in that order included in Available Funds for
such Distribution Date and available to make principal distributions on the related
Certificates on that Distribution Date.
Net Interest Shortfall: With respect to any Distribution Date, the Interest
Shortfall, if any, for such Distribution Date net of Compensating Interest Payments made
with respect to such Distribution Date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation Proceeds
net of (i) Liquidation Expenses which are payable therefrom to the Servicer in accordance
with this Agreement and (ii) unreimbursed advances by the Servicer and unreimbursed 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, (A) with respect to the Class A Certificates
(other than the Class II-A Certificates), the weighted average of the Net Rates of the
Mortgage Loans in the related Loan Group (and with respect to the Class III-A-2
Certificates, as further reduced by the portion of the premium payable to the Certificate
Insurer), (B)(i) with respect to the Class II-A-1a component and the Class II-A-2a
component, the weighted average of the Net Rates of the Mortgage Loans in sub-group IIa,
(ii) with respect to the Class II-A-1b component and the Class II-A-2b component, the
weighted average of the Net Rates of the Mortgage Loans in sub-group IIb, (iii) with respect
to the Class II-A-1c component and the Class II-A-2c component, the weighted average of the
Net Rates of the Mortgage Loans in sub-group IIc and (iv) with respect to the Class II-A-2
Certificates, as further reduced by the portion of the premium payable to the Certificate
Insurer and (C) with respect to the Class M Certificates and the Class B Certificates, the
weighted average of (i) the weighted average of the Net Rates on the Mortgage Loans in Loan
Group I, (ii) the weighted average of the Net Rates on the Mortgage Loans in Loan Group II,
(iii) the weighted average of the Net Rates on the Mortgage Loans in Loan Group III and (iv)
the weighted average of the Net Rates on the Mortgage Loans in Loan Group IV weighted on the
basis of (i) the excess of the aggregate Scheduled Principal Balance of the Mortgage Loans
in Loan Group I over the aggregate Current Principal Amount of the Class I-A Certificates
and the Class I-X Certificates, (ii) the excess of the aggregate Scheduled Principal Balance
of the Mortgage Loans in Loan Group II over the aggregate Current Principal Amount of the
Class II-A Certificates and the Class II-X Certificates, (iii) the excess of the aggregate
Scheduled Principal Balance of the Mortgage Loans in Loan Group III over the aggregate
Current Principal Amount of the Class III-A Certificates and the Class III-X-1 Certificates
and (iv) the excess of the aggregate Scheduled Principal Balance of the Mortgage Loans in
Loan Group IV over the aggregate Current Principal Amount of the Class IV-A Certificates and
the Class IV-X Certificates, respectively, in each case 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 for the Class M Certificates and the Class B Certificates is equal to the
weighted average of the Uncertificated REMIC II Pass-Through Rates for REMIC II Regular
▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4.
Non-Offered Subordinate Certificates: The Class XP, Class B-4, Class B-5 and
Class B-6 Certificates.
Nonrecoverable Advance: Any advance or Monthly Advance (i) which was previously made
or is proposed to be made by the Servicer or the Trustee (as successor Servicer) and
(ii) which, in the good faith judgment of the Servicer or the Trustee, will not or, in the
case of a proposed advance or Monthly Advance, would not, be ultimately recoverable by the
Servicer or the Trustee (as successor Servicer) from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such advance or Monthly Advance
was made or is proposed to be made.
Notice: As defined in the Certificate Insurance Policy.
Notional Amount: The Class I-X-1 Notional Amount, the Class I-X-2 Notional Amount,
the Class II-X-1 Notional Amount, the Class II-X-2 Notional Amount, the Class II-X-3
Notional Amount, the Class III-X-1 Notional Amount, the Class IV-X-1 Notional Amount, the
Class IV-X-2 Notional Amount and the Class M-X Notional Amount, as applicable.
Offered Certificates: The Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2,
Class III-A-1, Class III-A-2, Class IV-A-1, Class IV-A-2, Class I-X-1, Class I-X-2, Class
II-X-1, Class II-X-2, Class II-X-3, Class III-X-1, Class IV-X-1, Class IV-X-2, Class M-X,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2,
Class B-3 and Class R Certificates.
Offered Subordinate Certificates: The Class M-X, Class M, Class B-1, Class B-2 and
Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a Vice President or Assistant Vice President or
other authorized officer of the 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 Trustee 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 be the rate determined by the
Trustee two Business Days prior to the Closing Date. If such rate does not appear on such
page (or such other page as may replace that page on that service, or if such service is no
longer offered, such other service for displaying One-Month LIBOR or comparable rates as may
be reasonably selected by the Trustee), One-Month LIBOR for the applicable Interest Accrual
Period will be the Reference Bank Rate. If no such quotations can be obtained by the Trustee
and no Reference Bank Rate is available, One-Month LIBOR will be One-Month LIBOR applicable
to the preceding Interest Accrual Period. The Trustee's determination of One-Month LIBOR
and the Pass-Through Rate for each Class of Certificates (other than the Class R, Class R-X
Certificates or the Class XP Certificates) for any Interest Accrual Period shall, in the
absence of manifest error, be final and binding.
One-Year MTA: With respect to any Interest Accrual Period and the Class I-A-2
Certificates and the Class IV-A Certificates, the rate of One-Year MTA determined by the
Trustee for the related Interest Accrual Period as published by the Federal Reserve Board in
the Federal Reserve Statistical Release 'Selected Interest Rates (H.15)', determined by
averaging the monthly yields for the most recently available twelve months. The One-Year MTA
figure used to determine the pass-through rates on the Class I-A-2 Certificates and the
Class IV-A Certificates will be based on One-Year MTA as of fifteen days before the
beginning of the related Interest Accrual Period. If One-Year MTA is no longer available,
the index used to determine the pass-through rate on the Class I-A-2 Certificates and the
Class IV-A Certificates will be the same index selected to determine the interest rates on
the Group I Mortgage Loans and the Group IV Mortgage Loans. The establishment of One-Year
MTA on each interest determination date by the Trustee and the Trustee's calculation of the
Pass-Through Rates applicable to the Class I-A-2 Certificates and the Class IV-A
Certificates for the related Interest Accrual Period shall, in the absence of manifest error,
be final and binding.
Opinion of Counsel: A written opinion of counsel who is or are acceptable to the
Trustee and who, unless required to be Independent (an "Opinion of Independent Counsel"),
may be internal counsel for the Company, the Servicer or the Depositor.
Optional Termination Date: The Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than 10% of the Cut-off Date Balance.
Original Subordinate Principal Balance: The sum of the aggregate Current Principal
Amounts 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.
Pass-Through Rate: As to each Class of Certificates, the rate of interest determined
as provided with respect thereto in Section 5.01(c). Any monthly calculation of interest at
a stated rate for the Senior Class X Certificates and the Class M-X Certificates shall be
based upon annual interest at such rate divided by twelve. Any monthly calculation of
interest at a stated rate for the Class A, Class M or Class B Certificates shall be based on
a year of 360 days and the actual number of days in the accrual period for which the
calculation is being performed.
Paying Agent: The Trustee.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum adjustment that
can be made to the Mortgage Interest Rate on each Interest Adjustment Date in accordance
with its terms, regardless of changes in the applicable Index.
Permitted Investments: Any one or more of the following obligations or securities
held in the name of the Trustee for the benefit of the Certificateholders:
(i) direct obligations of, and obligations the timely payment of which are fully guaranteed
by the United States of America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the United
States of America;
(ii) (a) demand or time deposits, federal funds or bankers' acceptances issued by any
depository institution or trust company incorporated under the laws of the United States of
America or any state thereof (including the Trustee or its Affiliates acting in its
commercial banking capacity) and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or the short-term debt
rating and/or the long-term unsecured debt obligations of such depository institution or
trust company at the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating Agency and (b) any
other demand or time deposit or certificate of deposit that is fully insured by the Federal
Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security described in clause (i) above
or (b) any other security issued or guaranteed by an agency or instrumentality of the United
States of America, the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (ii)(a) above where the Trustee holds the
security therefor;
(iv) securities bearing interest or sold at a discount issued by any corporation (including
the Trustee or the Servicer or their Affiliates) incorporated under the laws of the United
States of America or any state thereof that have the Applicable Credit Rating or better from
each Rating Agency at the time of such investment or contractual commitment providing for
such investment; provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investments therein will cause the then
outstanding principal amount of securities issued by such corporation and held as part of
the Trust to exceed 10% of the aggregate Outstanding Principal Balances of all the Mortgage
Loans and Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more than one year
after the date of issuance thereof) having the Applicable Credit Rating or better from each
Rating Agency at the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or other corporation or
entity;
(vii) any other demand, money market or time deposit, obligation, security or investment as
may be acceptable to each Rating Agency as evidenced in writing by each Rating Agency to the
Trustee;
(viii) any money market or common trust fund having the Applicable Credit Rating or better
from each Rating Agency, including any such fund for which the Trustee or the Servicer, or
any affiliate of the Trustee or the Servicer, acts as a manager or an advisor; provided,
however, that no instrument or security shall be a Permitted Investment if such instrument
or security evidences a right to receive only interest payments with respect to the
obligations underlying such instrument or if such security provides for payment of both
principal and interest with a yield to maturity in excess of 120% of the yield to maturity
at par or if such instrument or security is purchased at a price greater than par; and
(ix) interests in any money market fund (including any such fund managed or advised by the
Trustee or the Servicer or any affiliate thereof) which at the date of acquisition of the
interests in such fund and throughout the time such interests are held in such fund has the
highest applicable long term rating by each Rating Agency or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to the Certificates by
each Rating Agency.
Permitted Transferee: Any Person other than a Disqualified Organization or an
"electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture, association,
limited liability company, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Physical Certificates: The Residual Certificates and the Private Certificates.
Plan: The meaning specified in Section 5.07(a).
Policy Account: The account established and maintained pursuant to Section 4.10.
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 Shortfalls: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a partial Principal Prepayment or a Principal
Prepayment in full during the related Prepayment Period, the amount, if any, by which (i)
one month's interest at the applicable Net Rate on the Scheduled Principal Balance
immediately prior to such prepayment or in the case of a partial Principal Prepayment on the
amount of such prepayment exceeds (ii) the amount of interest paid or collected in
connection with such Principal Prepayment less the sum of (a) any Prepayment Charges and (b)
the related Servicing Fee.
Prepayment Period: With respect to any Distribution Date, the period from the
sixteenth day of the calendar month preceding the calendar month in which such Distribution
Date occurs through the close of business on the fifteenth day of the calendar month in
which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance policy
issued in connection with a Mortgage Loan which provides compensation to a Mortgage Note
holder in the event of default by the obligor under such Mortgage Note or the related
Security Instrument, if any or any replacement policy therefor through the related Interest
Accrual Period for such Class relating to a Distribution Date.
Prime Rate: The prime rate of U.S. money center banks as published from time to time
in The Wall Street Journal.
Principal Prepayment: Any payment (whether partial or full) or other recovery of
principal on a Mortgage Loan which is received in advance of its scheduled Due Date to the
extent that it is not accompanied by an amount as to interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month of
prepayment, including Insurance Proceeds and Repurchase Proceeds, but excluding the
principal portion of Net Liquidation Proceeds.
Private Certificates: The Class XP, Class B-4, Class B-5 and Class B-6 Certificates.
Prospectus: The prospectus, dated December 20, 2004, as supplemented by the
prospectus supplement dated October 28, 2005, relating to the offering of the Offered
Certificates.
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 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: ▇▇▇▇▇'▇ and S&P.
Realized Loss: Any (i) Bankruptcy Loss or (ii) as to any Liquidated Mortgage Loan,
(x) the Outstanding Principal Balance of such Liquidated Mortgage Loan plus accrued and
unpaid interest thereon at the Mortgage Interest Rate through the last day of the month of
such liquidation, less (y) the related Net Liquidation Proceeds with respect to such
Mortgage Loan and the related Mortgage Property. In addition, to the extent the Servicer
receives Subsequent Recoveries with respect to any Mortgage Loan, the amount of the Realized
Loss with respect to that Mortgage Loan will be reduced to the extent such recoveries are
applied to reduce the Current Principal Amount of any Class of Certificates on any
Distribution Date.
Realized Losses on the Mortgage Loans shall be allocated to the REMIC I Regular
Interests as follows: (1) The interest portion of Realized Losses and Net Interest
Shortfalls on the Group I Mortgage Loans, if any, shall be allocated between the Class Y-1
and Class Z-1 Regular Interests pro rata according to the amount of interest accrued but
unpaid thereon, in reduction thereof; (2) the interest portion of Realized Losses and Net
Interest Shortfalls on the Group II Mortgage Loans, if any, shall be allocated between the
Class Y-2 and Class Z-2 Regular Interests pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof; (3) the interest portion of Realized
Losses and Net Interest Shortfalls on the Group III Mortgage Loans, if any, shall be
allocated between the Class Y-3 and Class Z-3 Regular Interests pro rata according to the
amount of interest accrued but unpaid thereon, in reduction thereof; and (4) the interest
portion of Realized Losses and Net Interest Shortfalls on the Group IV Mortgage Loans, if
any, shall be allocated between the Class Y-4 and Class Z-4 Regular Interests pro rata
according to the amount of interest accrued but unpaid thereon, in reduction thereof. Any
interest portion of such Realized Losses in excess of the amount allocated pursuant to the
preceding sentence shall be treated as a principal portion of Realized Losses not
attributable to any specific Mortgage Loan in such Group and allocated pursuant to the
succeeding sentences. The principal portion of Realized Losses with respect to the Mortgage
Loans shall be allocated to the REMIC I Regular Interests as follows: (1) the principal
portion of Realized Losses on the Group I Mortgage Loans shall be allocated, first, to the
Class Y-1 Regular Interest to the extent of the Class Y-1 Principal Reduction Amount in
reduction of the Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-1 Regular Interest in reduction of the Uncertificated Principal Balance thereof;
(2) the principal portion of Realized Losses on the Group II Mortgage Loans shall be
allocated, first, to the Class Y-2 Regular Interest to the extent of the Class Y-2 Principal
Reduction Amount in reduction of the Uncertificated Principal Balance of such Regular
Interest and, second, the remainder, if any, of such principal portion of such Realized
Losses shall be allocated to the Class Z-2 Regular Interest in reduction of the
Uncertificated Principal Balance thereof; (3) the principal portion of Realized Losses on
the Group III Mortgage Loans shall be allocated, first, to the Class Y-3 Regular Interest to
the extent of the Class Y-3 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if any, of such
principal portion of such Realized Losses shall be allocated to the Class Z-3 Regular
Interest in reduction of the Uncertificated Principal Balance thereof; and (4) the principal
portion of Realized Losses on the Group IV Mortgage Loans shall be allocated, first, to the
Class Y-4 Regular Interest to the extent of the Class Y-4 Principal Reduction Amount in
reduction of the Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-4 Regular Interest in reduction of the Uncertificated Principal Balance
thereof. For any Distribution Date, reductions in the Uncertificated Principal Balances of
the Class Y and Class Z Regular Interest pursuant to this definition of Realized Loss shall
be determined, and shall be deemed to occur, prior to any reductions of such Uncertificated
Principal Balances by distributions on such Distribution Date.
Record Date: For each Class of Offered Certificates (other than the Class I-A-2,
Class IV-A and Class X Certificates), and for any Distribution Date, the close of business
on the Business Day prior to such Distribution Date. For the Class I-A-2, Class IV-A and
Class X Certificates and for any Distribution Date, the close of business on the last
Business Day of the month immediately preceding the month in which such Distribution Date
occurs.
Reference Bank: A leading bank selected by the Trustee 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 Current Principal Amount of the Offered Certificates
(other than the Class X, Class R and Class R-X 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 Trustee, 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 Current Principal Amount of the Offered
Certificates (other than the Class X Certificates, Class R and Class R-X Certificates).
Reimbursement Amount: As defined in the Certificate Insurance Policy.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to the
Rating Agencies, from a bank, insurance company or other corporation or entity (including
the Trustee).
Relief Act: The Servicemembers Civil Relief Act, as amended, or similar state law.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Scheduled Payment
thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of Section 860D
of the Code.
REMIC Administrator: The Trustee; provided that if the REMIC Administrator is found
by a court of competent jurisdiction to no longer be able to fulfill its obligations as
REMIC Administrator under this Agreement the Servicer shall appoint a successor REMIC
Administrator, subject to assumption of the REMIC Administrator obligations under this
Agreement.
REMIC Interest: Any of REMIC I Interests, REMIC II Interests, REMIC III Interests and
REMIC IV Interests.
REMIC Opinion: An Opinion of Independent Counsel, to the effect that the proposed
action described therein would not, under the REMIC Provisions, (i) cause any 2005-AR5 REMIC
to fail to qualify as a REMIC while any regular interest in such 2005-AR5 REMIC is
outstanding, (ii) result in a tax on prohibited transactions with respect to any 2005-AR5
REMIC or (iii) constitute a taxable contribution to any 2005-AR5 REMIC after the Startup Day.
REMIC Provisions: The provisions of the federal income tax law relating to REMICs,
which appear at Sections 860A through 860G of the Code, and related provisions and
regulations promulgated thereunder, as the foregoing may be in effect from time to time.
REMIC Regular Interest: Any of the REMIC I Regular Interests, REMIC II Regular
Interests, REMIC III Regular Interests and REMIC IV Regular Interests.
REMIC I: The segregated pool of assets, with respect to which a REMIC election is
made pursuant to this Agreement, consisting of:
(a) the Mortgage Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
(b) all payments on and collections in respect of the Mortgage Loans due after the
Cut-off Date as shall be on deposit in the Custodial Account or in the Distribution Account
(other than amounts representing Prepayment Charges in respect of Prepayment Charge Loans)
and identified as belonging to the Trust Fund,
(c) property that secured a Mortgage Loan and that has been acquired for the
benefit of the Certificateholders by foreclosure or deed in lieu of foreclosure,
(d) the hazard insurance policies and Primary Mortgage Insurance Policy, if any,
and
(e) all proceeds of clauses (a) through (d) above.
REMIC I Available Distribution Amount: For each Loan Group for any Distribution
Date, the Available Funds for such Loan Group.
REMIC I Distribution Amount: For any Distribution Date, the REMIC I Available
Distribution Amounts shall be deemed distributed to REMIC II, as the holder of the REMIC I
Regular Interests, and to Holders of the Class R Certificates in respect of Component I
thereof, in the following amounts and priority:
(a) To the extent of the REMIC I Available Distribution Amount for Loan Group I:
(i) first, to Y-1 and Z-1 REMIC I Regular Interests, concurrently,
the Uncertificated Accrued Interest (reduced in each case to account for any Net
Deferred Interest allocated to such Regular Interests) for such Regular Interests
remaining unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Y-1 and Z-1 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests for the current Distribution Date, pro rata according to their respective
Uncertificated Accrued Interest; and
(iii) third, to the Y-1 and Z-1 REMIC I Regular Interests, the REMIC
I Regular Interest Y-1 Principal Distribution Amount and the REMIC I Regular
Interest Z-1 Principal Distribution Amount, respectively;
(b) To the extent of the REMIC I Available Distribution Amount for Loan Group II:
(i) first, to the Y-2 and Z-2 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests remaining unpaid from previous Distribution Dates, pro rata according to
their respective shares of such unpaid amounts;
(ii) second, to the Y-2 and Z-2 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests for the current Distribution Date, pro rata according to their respective
Uncertificated Accrued Interest; and
(iii) third, to the Y-2 and Z-2 REMIC I Regular Interests, the
REMIC I Regular Interest Y-2 Principal Distribution Amount and the REMIC I Regular
Interest Z-2 Principal Distribution Amount, respectively;
(c) To the extent of the REMIC I Available Distribution Amount for Loan Group III:
(i) first, to the Y-3 and Z-3 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests remaining unpaid from previous Distribution Dates, pro rata according to
their respective shares of such unpaid amounts;
(ii) second, to the Y-3 and Z-3 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests for the current Distribution Date, pro rata according to their respective
Uncertificated Accrued Interest; and
(iii) third, to the Y-3 and Z-3 REMIC I Regular Interests, the
REMIC I Regular Interest Y-3 Principal Distribution Amount and the REMIC I Regular
Interest Z-3 Principal Distribution Amount, respectively;
(d) To the extent of the REMIC I Available Distribution Amount for Loan Group IV:
(i) first, to the Y-4 and Z-4 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests remaining unpaid from previous Distribution Dates, pro rata according to
their respective shares of such unpaid amounts;
(ii) second, to the Y-4 and Z-4 REMIC I Regular Interests,
concurrently, the Uncertificated Accrued Interest (reduced in each case to account
for any Net Deferred Interest allocated to such Regular Interests) for such Regular
Interests for the current Distribution Date, pro rata according to their respective
Uncertificated Accrued Interest; and
(iii) third, to the Y-4 and Z-4 REMIC I Regular Interests, the
REMIC I Regular Interest Y-4 Principal Distribution Amount and the REMIC I Regular
Interest Z-4 Principal Distribution Amount, respectively; and
(e) To the extent of the REMIC I Available Distribution Amounts for such
Distribution Date remaining after payment of the amounts pursuant to paragraphs (a) through
(d) of this definition of "REMIC I Distribution Amount":
(i) first, to each of the REMIC I Class Y and Class Z Regular
Interests, pro rata according to the amount of unreimbursed Realized Losses allocable
to principal previously allocated to each such Regular Interests; provided, however,
that any amounts distributed pursuant to this paragraph (e)(i) of this definition of
"REMIC I Distribution Amount" shall not cause a reduction in the Uncertificated
Principal Balances of any of the Class Y and Class Z Regular Interests; and
(ii) second, to the Class R Certificates in respect of Component I
thereof, any remaining amount.
REMIC I Interest: Any of the REMIC I Regular Interests and Component I of the
Class R Certificates.
REMIC I Net Deferred Interest: Net Deferred Interest for Loan Group I for any
Distribution Date shall be allocated to REMIC I Regular Interest Z-1, Net Deferred Interest
for Loan Group II for any Distribution Date shall be allocated to REMIC I Regular Interest
Z-2, Net Deferred Interest for Loan Group III for any Distribution Date shall be allocated
to REMIC I Regular Interest Z-3 and Net Deferred Interest for Loan Group IV for any
Distribution Date shall be allocated to REMIC I Regular Interest Z-4.
REMIC I Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC I set forth in Section 5.01(c) and issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC I Regular Interest in
Section 5.01(c), and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in Section 5.01(c). The designations for the respective REMIC I
Regular Interests are set forth in Section 5.01(c).
REMIC II Available Distribution Amount: For any Distribution Date, the amount deemed
distributed on such Distribution Date from REMIC I to REMIC II in respect of the REMIC I
Regular Interests.
REMIC II Distribution Amount: On each Distribution Date, the REMIC II Available
Distribution Amount shall be distributed by REMIC II to REMIC III on account of the REMIC II
Regular Interests and to the Class R Certificates in respect of Component II thereof, in the
following order of priority:
(i) to REMIC III as the holder of REMIC II Regular Interests, pro rata, in an
amount equal to (A) the Uncertificated Accrued Interest for each such REMC II Regular
Interest for such Distribution Date reduced, in each case, by any Net Deferred Interest
allocated to such REMIC II Regular Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates; and
(ii) on each Distribution Date, to REMIC III as the holder of the REMIC II Regular
Interests, in an amount equal to the remainder of the REMIC II Available Distribution Amount
after the distributions made pursuant to clause (i) above, allocated as follows (except as
provided below):
(A) in respect of each of the REMIC II Regular Interests, their respective
Principal Distribution Amounts;
(B) in respect of REMIC II Regular Interest LT1 any remainder until the
Uncertificated Principal Balance thereof is reduced to zero;
(C) any remainder in respect of each of the REMIC II Regular Interests (other than
REMIC II Regular Interest LT1), pro rata according to their respective Uncertificated
Principal Balances as reduced by the distributions deemed made pursuant to (A) above,
until their respective Uncertificated Principal Balances are reduced to zero; and
(iii) any remaining amounts to the Holders of the Class R Certificates in respect of
Component II thereof.
REMIC II Interest: Any of the REMIC II Regular Interests and Component II of the
Class R Certificates.
REMIC II Net Deferred Interest: Net Deferred Interest for any Distribution Date
shall be allocated, first, to REMIC II Regular Interests LT2, LT5, LT9, LT12, LT15, LT19,
LT23, LT26 and LT29, respectively, to the extent that their Principal Reduction Amounts for
such Distribution Date are negative and, second, to REMIC II Regular Interests LT1, LT8,
LT18 and LT22, pro rata according to their respective Uncertificated Principal Balances, to
the extent of any remaining Net Deferred Interest.
REMIC II Principal Reduction Amounts: For any Distribution Date, the amounts by which
the Uncertificated Principal Balances of the REMIC II Regular Interests will be reduced on
such Distribution Date by the allocation of Realized Losses and the distribution of
principal, determined as described in Appendix 2.
REMIC II Realized Losses: Realized Losses on Mortgage Loans shall be allocated to
the REMIC II Regular Interests as follows: The interest portion of Realized Losses on
Mortgage Loans, if any, shall be allocated among each of the REMIC II Regular Interests, pro
rata according to the amount of interest accrued but unpaid thereon, in reduction thereof.
Any interest portion of such Realized Losses in excess of the amount allocated pursuant to
the preceding sentence shall be treated as a principal portion of Realized Losses not
attributable to any specific Mortgage Loan and allocated pursuant to the succeeding
sentences. The principal portion of Realized Losses shall be allocated to the REMIC II
Regular Interests as follows: (1) The principal portion of Realized Losses shall be
allocated, first, to REMIC II Regular ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4, respectively
in the same amounts as Realized Losses were allocated to the REMIC I Regular Interests Y-1,
Y-2, Y-3 and Y-4, second, to each of the REMIC II Regular Interests (other than REMIC II
Regular ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4), pro-rata according to their
respective REMIC II Principal Reduction Amounts to the extent thereof in reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interests and, third, the
remainder, if any, of such principal portion of such Realized Losses shall be allocated to
REMIC II Regular Interest LT1 in reduction of the Uncertificated Principal Balance thereof.
REMIC II Regular Interest LT1 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT1 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT1 on such Distribution Date.
REMIC II Regular Interest LT2 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT2 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT2 on such Distribution Date.
REMIC II Regular Interest LT3 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT3 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT3 on such Distribution Date.
REMIC II Regular Interest LT4 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT4 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT4 on such Distribution Date.
REMIC II Regular Interest LT5 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT5 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT5 on such Distribution Date.
REMIC II Regular Interest LT6 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT6 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT6 on such Distribution Date.
REMIC II Regular Interest LT7 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT7 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT7 on such Distribution Date.
REMIC II Regular Interest LT8 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT8 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT8 on such Distribution Date.
REMIC II Regular Interest LT9 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT9 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT9 on such Distribution Date.
REMIC II Regular Interest LT10 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT10 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT10 on such Distribution Date.
REMIC II Regular Interest LT11 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT11 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT11 on such Distribution Date.
REMIC II Regular Interest LT12 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT12 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT12 on such Distribution Date.
REMIC II Regular Interest LT13 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT13 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT13 on such Distribution Date.
REMIC II Regular Interest LT14 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT14 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT14 on such Distribution Date.
REMIC II Regular Interest LT15 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT15 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT15 on such Distribution Date.
REMIC II Regular Interest LT16 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT16 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT16 on such Distribution Date.
REMIC II Regular Interest LT17 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT17 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT17 on such Distribution Date.
REMIC II Regular Interest LT18 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT18 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT18 on such Distribution Date.
REMIC II Regular Interest LT19 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT19 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT19 on such Distribution Date.
REMIC II Regular Interest LT20 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT20 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT20 on such Distribution Date.
REMIC II Regular Interest LT21 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT21 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT21 on such Distribution Date.
REMIC II Regular Interest LT22 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT22 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT22 on such Distribution Date.
REMIC II Regular Interest LT23 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT23 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT23 on such Distribution Date.
REMIC II Regular Interest LT24 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT24 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT24 on such Distribution Date.
REMIC II Regular Interest LT25 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT25 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT25 on such Distribution Date.
REMIC II Regular Interest LT26 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT26 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT26 on such Distribution Date.
REMIC II Regular Interest LT27 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT27 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT27 on such Distribution Date.
REMIC II Regular Interest LT28 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT28 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT28 on such Distribution Date.
REMIC II Regular Interest LT29 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT29 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT29 on such Distribution Date.
REMIC II Regular Interest LT30 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT30 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT30 on such Distribution Date.
REMIC II Regular Interest LT31 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT31 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT31 on such Distribution Date.
REMIC II Regular Interest LT-Y1 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT-Y1 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT-Y1 on such Distribution Date.
REMIC II Regular Interest LT-Y2 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT-Y2 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT-Y2 on such Distribution Date.
REMIC II Regular Interest LT-Y3 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT-Y3 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT-Y3 on such Distribution Date.
REMIC II Regular Interest LT-Y4 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the REMIC II Regular Interest LT-Y4 Principal Reduction Amount
for such Distribution Date over the Realized Losses allocated to the REMIC II Regular
Interest LT-Y4 on such Distribution Date.
REMIC II Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC II set forth in Section 5.01(c) and issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue interest at the
Uncertificated Pass-Through Rate specified for such REMIC II Regular Interest in
Section 5.01(c), and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in Section 5.01(c). The designations for the respective REMIC II
Regular Interests are set forth in Section 5.01(c).
REMIC III: That group of assets contained in the Trust Fund designated as a REMIC
consisting of the REMIC II Regular Interests and any proceeds thereof.
REMIC III Available Distribution Amount: For any Distribution Date, the amounts
deemed distributed with respect to the REMIC II Regular Interests pursuant to Section 6.07.
REMIC III Distribution Amount: For any Distribution Date, the REMIC III Available
Distribution Amount shall be deemed distributed by REMIC III to the holders of the
Certificates (other than the Class R, Class R-X, Class X and Class XP Certificates) on
account of the REMIC III Regular Interests (other than REMIC III Regular Interests ▇-▇-▇,
▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, III-X-1, IV-X-2, IV-X-2 and M-X), to REMIC IV on account of
REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-2, IV-X-2
and M-X, and to holders of the Class R Certificates in respect of Component III thereof, as
follows: to each REMIC III Regular Interest in respect of Uncertificated Accrued Interest
thereon and the Uncertificated Principal Balance thereof, the amount distributed in respect
of interest and principal on the Class or Classes of Certificates bearing the same
designation (with such amounts having the same character as interest or principal with
respect to the REMIC III Regular Interest as they have with respect to the Related
Certificate or Certificates), except that no amount paid to any Certificate in respect of
any Carryover Shortfall Amount shall be included in the amount paid in respect of a related
REMIC III Regular Interest. Any remaining amount of the REMIC III Available Distribution
Amount shall be distributed to the holders of the Class R Certificates in respect of
Component III thereof.
REMIC III Interest: Any of the REMIC III Regular Interests and Component III of the
Class R Certificate.
REMIC III Net Deferred Interest: Net Deferred Interest for any Distribution Date
shall be allocated to REMIC III Regular Interests to the same extent that Net Deferred
Interest is allocated to the Class of Certificates bearing the same designation.
REMIC III Regular Interest I-X-1: A regular interest in REMIC III that has an initial
principal balance equal to zero, that bears interest at the related Uncertificated REMIC III
Pass-Through Rate on its Uncertificated Notional Amount, and that has such other terms as
are described herein.
REMIC III Regular Interest I-X-2: A regular interest in REMIC III that has an initial
principal balance equal to zero, that bears interest at the related Uncertificated REMIC III
Pass-Through Rate on its Uncertificated Notional Amount, and that has such other terms as
are described herein.
REMIC III Regular Interest II-X-1: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest II-X-2: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest II-X-3: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest III-X-1: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest IV-X-1: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest IV-X-2: A regular interest in REMIC III that has an
initial principal balance equal to zero, that bears interest at the related Uncertificated
REMIC III Pass-Through Rate on its Uncertificated Notional Amount, and that has such other
terms as are described herein.
REMIC III Regular Interest M-X: A regular interest in REMIC III that has an initial
principal balance equal to zero, that bears interest at the related Uncertificated REMIC III
Pass-Through Rate on its Uncertificated Notional Amount, and that has such other terms as
are described herein.
REMIC III Regular Interest: Any of the separate beneficial ownership interests in
REMIC III set forth in Section 5.01(c) and issued hereunder and designated as a "regular
interest" in REMIC III. Each REMIC III Regular Interest shall accrue interest at the
Uncertificated REMIC III Pass-Through Rate specified for such REMIC III Regular Interest in
Section 5.01(c), and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in Section 5.01(c). The designations for the respective REMIC III
Regular Interests are set forth in Section 5.01(c).
REMIC IV: That group of assets contained in the Trust Fund designated as a REMIC
consisting of REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇,
IV-X-1, IV-X-2 and M-X and any proceeds thereof.
REMIC IV Available Distribution Amount: For any Distribution Date, the amounts
deemed distributed with respect to REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X pursuant to Section 6.07.
REMIC IV Distribution Amount: For any Distribution Date, the REMIC IV Available
Distribution Amount shall be deemed distributed by REMIC IV to the holders of the Class
I-X-1, Class I-X-2, Class II-X-1, Class II-X-2, Class II-X-3, Class III-X-1, Class IV-X-1,
Class IV-X-2 and Class M-X Certificates on account of REMIC III Regular Interests ▇-▇-▇,
▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X, respectively.
REMIC IV Interest: Any of the REMIC IV Regular Interests and the Class R-X
Certificates.
REMIC IV Regular Interest: Any of the separate beneficial ownership interests in
REMIC IV set forth in Section 5.01(c)(iv) and issued hereunder and designated as a "regular
interest" in REMIC IV. Each REMIC IV Regular Interest shall accrue interest at the
Uncertificated REMIC IV Pass-Through Rate specified for such REMIC IV Regular Interest in
Section 5.01(c)(iv). The designations for the respective REMIC IV Regular Interests are set
forth in Section 5.01(c)(iv).
REO Acquisition: The acquisition by the Servicer on behalf of the Trustee for the
benefit of the Certificateholders of any REO Property pursuant to Section 3.15.
REO Disposition: As to any REO Property, a determination by the Servicer that it has
received all Insurance Proceeds, Liquidation Proceeds, REO Proceeds and other payments and
recoveries (including proceeds of a final sale) which the Servicer expects to be finally
recoverable from the sale or other disposition of the REO Property.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO Property.
REO Property: A Mortgaged Property acquired in the name of the Trust, 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 sum of, without
duplication, (i)(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), plus (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, plus (c) any
unreimbursed Monthly Advances and servicing advances payable to the Servicer and (ii) 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.
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.
Residual Certificates: The Class R Certificates and the Class R-X Certificates.
Responsible Officer: Any officer assigned to the Corporate Trust Office of the
Trustee (or any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of this
Agreement, and any other officer of the Trustee to whom a matter arising hereunder may be
referred.
Rule 144A 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 ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its
successors in interest.
Scheduled Payment: With respect to any Mortgage Loan and any Due Period, the
scheduled payment or payments of principal and interest due during such Due Period on such
Mortgage Loan which either is payable by a Mortgagor in such Due Period under the related
Mortgage Note or, in the case of REO Property, would otherwise have been payable under the
related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Scheduled Principal Balance: With respect to any Mortgage Loan on any Distribution
Date, (i) the unpaid principal balance of such Mortgage Loan as of the close of business on
the related Due Date (taking account of the principal payment to be made on such Due Date
and irrespective of any delinquency in its payment), as specified in the amortization
schedule at the time relating thereto (before any adjustment to such amortization schedule
by reason of any bankruptcy or similar proceeding occurring after the Cut-off Date (other
than a Deficient Valuation) or any moratorium or similar waiver or grace period) including
any Deferred Interest thereon and less (ii) any Principal Prepayments (including the
principal portion of Net Liquidation Proceeds) received during or prior to the related
Prepayment Period; provided that the Scheduled Principal Balance of a Liquidated Mortgage
Loan is zero.
Securities Act: The Securities Act of 1933, as amended.
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 AND THE SERVICER 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 SERVICER OR THE TRUSTEE 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 and the Senior Class X Certificates.
Senior Class X Certificates: The Class I-X, Class II-X, Class III-X-1 and Class IV-X
Certificates.
Senior Optimal Principal Amount: With respect to each Distribution Date and a Loan
Group or Sub-Group, an amount equal to the sum, without duplication, of the following (after
giving effect to the application of such amounts to cover Deferred Interest on the Mortgage
Loans on such Distribution Date in accordance with the definition of Net Deferred Interest
but in no event greater than the aggregate Current Principal Amounts of the related
Certificate Group immediately prior to such Distribution Date):
(i) the related Senior Percentage of the principal portion of all Scheduled
Payments due on each Outstanding Mortgage Loan in the related Loan Group or Sub-Group on the
related Due Date as specified in the amortization schedule at the time applicable thereto
(after adjustments for previous Principal Prepayments but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period if the related Distribution Date occurs prior to the
Cross-Over Date);
(ii) the related Senior Prepayment Percentage of the Scheduled Principal
Balance of Mortgage Loan in the related Loan Group or Sub-Group which was the subject of a
Principal Prepayment in full received by the Servicer during the related Prepayment Period;
(iii) the related Senior Prepayment Percentage of amount of all Principal
Prepayments in part allocated to principal received by the Servicer during the related
Prepayment Period in respect to each Mortgage Loan in the related Loan Group or Sub-Group;
(iv) the lesser of (a) the related Senior Prepayment Percentage of the sum
of (A) all Net Liquidation Proceeds allocable to principal received in respect of each
Mortgage Loan in the related Loan Group or Sub-Group that became a Liquidated Mortgage Loan
during the related Prepayment Period (other than Mortgage Loans described in the immediately
following clause (B)) and all Subsequent Recoveries received in respect of each Liquidated
Mortgage Loan in the related Loan Group or Sub-Group during the related Due Period and (B)
the Scheduled Principal Balance of each such Mortgage Loan purchased by an insurer from the
Trust during the related Prepayment Period pursuant to the related Primary Mortgage
Insurance Policy, if any, or otherwise and (b) the related Senior Percentage of the sum of
(A) the Scheduled Principal Balance of each Mortgage Loan in the related Loan Group or
Sub-Group which became a Liquidated Mortgage Loan during the related Prepayment Period
(other than the Mortgage Loans described in the immediately following clause (B)) and all
Subsequent Recoveries received in respect of each Liquidated Mortgage Loan in the related
Loan Group or Sub-Group during the related Due Period and (B) the Scheduled Principal
Balance of each such Mortgage Loan that was purchased by an insurer from the Trust during
the related Prepayment Period pursuant to the related Primary Mortgage Insurance Policy, if
any or otherwise;
(v) the related Senior Prepayment Percentage of the sum of (a) the
Scheduled Principal Balance of each Mortgage Loan in the related Loan Group or Sub-Group
that was repurchased by the Seller in connection with such Distribution Date and (b) the
excess, if any, of the Scheduled Principal Balance of a Mortgage Loan in the related Loan
Group that has been replaced by the Seller with a substitute Mortgage Loan pursuant to the
Mortgage Loan Purchase Agreement in connection with such Distribution Date over the
Scheduled Principal Balance of such substitute Mortgage Loan; and
(vi) any amount allocated to the Available Funds of the related Loan Group
or Sub-Group pursuant to Section 6.01(a)(G).
Senior Percentage: With respect to each Certificate Group, initially 87.50%. With
respect to any Distribution Date and a Certificate Group, the lesser of (i) 100% and
(ii) the percentage obtained by dividing the aggregate Current Principal Amount of the Senior
Certificates in such Certificate Group immediately preceding such Distribution Date by the
aggregate Scheduled Principal Balance of the Mortgage Loans in the related Loan Group or
Sub-Group as of the beginning of the related Due Period.
Senior Prepayment Percentage: With respect to a Certificate Group and any
Distribution Date occurring during the periods set forth below, as follows:
Period (dates inclusive) Senior Prepayment Percentage
November 2005 - October 2015 100%
November 2015 - October 2016 Senior Percentage for the related Certificate
Group plus 70% of the Subordinate Percentage for
the related Loan Group or Sub-Group.
November 2016 - October 2017 Senior Percentage for the related Certificate
Group plus 60% of the Subordinate Percentage for
the related Loan Group or Sub-Group.
November 2017 - October 2018 Senior Percentage for the related Certificate
Group plus 40% of the Subordinate Percentage for
the related Loan Group or Sub-Group.
November 2018 - October 2019 Senior Percentage for the related Certificate
Group plus 20% of the Subordinate Percentage for
the related Loan Group or Sub-Group.
November 2019 and thereafter Senior Percentage for the related Certificate
Group.
In addition, no reduction of the Senior Prepayment Percentage for the related
Certificate Group shall occur on any Distribution Date unless, as of the last day of the
month preceding such Distribution Date, (A) the aggregate Scheduled Principal Balance of the
Mortgage Loans delinquent 60 days or more (including for this purpose any such Mortgage
Loans in foreclosure and Mortgage Loans with respect to which the related Mortgaged Property
has been acquired by the Trust), averaged over the last six months, as a percentage of the
sum of the aggregate Current Principal Amount of the Subordinate Certificates does not
exceed 50%; and (B) cumulative Realized Losses on the Mortgage Loans do not exceed (a) 30%
of the Original Subordinate Principal Balance if such Distribution Date occurs between and
including November 2015 and October 2016, (b) 35% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including November 2016 and October
2017, (c) 40% of the Original Subordinate Principal Balance if such Distribution Date occurs
between and including November 2017 and October 2018, (d) 45% of the Original Subordinate
Principal Balance if such Distribution Date occurs between and including November 2018 and
October 2019, and (e) 50% of the Original Subordinate Principal Balance if such Distribution
Date occurs during or after November 2019.
In addition, if on any Distribution Date the weighted average of the Subordinate
Percentages for such Distribution Date is equal to or greater than two times the initial
weighted average of the Subordinate Percentages, and (a) the aggregate Scheduled Principal
Balance of the Mortgage Loans delinquent 60 days or more (including for this purpose any
such Mortgage Loans in foreclosure and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six months, as a
percentage of the aggregate Current Principal Amount of the Subordinate Certificates does
not exceed 50% and (b)(i) on or prior to the Distribution Date in October 2008, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment Period do not
exceed 20% of the Original Subordinate Principal Balance and (ii) after the Distribution
Date in October 2008 cumulative Realized Losses on the Mortgage Loans as of the end of the
related Prepayment Period do not exceed 30% of the Original Subordinate Principal Balance,
then, the Senior Prepayment Percentage for such Distribution Date will equal the Senior
Percentage for the related Certificate Group; provided, however, if on such Distribution
Date the Subordinate Percentage is equal to or greater than two times the initial
Subordinate Percentage on or prior to the Distribution Date occurring in October 2008 and
the above delinquency and loss tests are met, then the Senior Prepayment Percentage for the
related Certificate Group for such Distribution Date will equal the related Senior
Percentage plus 50% of the related Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the percentage, the
numerator of which is the aggregate Current Principal Amount of the related Senior
Certificates immediately preceding such Distribution Date, and the denominator of which is
the Scheduled Principal Balance of the related Mortgage Loans as of the beginning of the
related Due Period, exceeds such percentage as of the Cut-Off Date, the Senior Prepayment
Percentage with respect to all Senior Certificates for such Distribution Date will equal
100%.
Servicer: As of the Closing Date, EMC Mortgage Corporation and, thereafter, its
respective successors in interest that meet the qualifications of this Agreement.
Servicer Certification: A written certification covering servicing of the Mortgage
Loans by the Servicer and signed by an officer of the Servicer that complies with (i) the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Servicer Certification shall be as agreed
to by the Servicer and the Depositor following a negotiation in good faith to determine how
to comply with any such new requirements.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount equal to the
product of (i) the Scheduled Principal Balance of such Mortgage Loan as of the Due Date in
the preceding calendar month and (ii) the Servicing Fee Rate.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth in the
Mortgage Loan Schedule.
Servicing Officer: The President or a Vice President or Assistant Vice President or
other authorized officer of the Servicer having direct responsibility for the administration
of this Agreement, and any other authorized officer of the Servicer to whom a matter arising
hereunder may be referred.
Startup Day: October 31, 2005.
Sub-Group: With respect to Loan Group II, any of Sub-Group IIa, Sub-Group IIb or
Sub-Group IIc, as applicable.
Sub-Group IIa: The group of Mortgage Loans designated as belonging to Sub-Group IIa
on the Mortgage Loan Schedule.
Sub-Group IIa Certificates: The Class II-A-1a Component, the Class II-A-2a Component
and the Class II-X-1 Certificates.
Sub-Group IIb: The group of Mortgage Loans designated as belonging to Sub-Group IIb
on the Mortgage Loan Schedule.
Sub-Group IIb Certificates: The Class II-A-1b Component, the Class II-A-2b Component
and the Class II-X-2 Certificates.
Sub-Group IIc: The group of Mortgage Loans designated as belonging to Sub-Group IIc
on the Mortgage Loan Schedule.
Sub-Group IIc Certificates: The Class II-A-1c Component, the Class II-A-2c Component
and the Class II-X-3 Certificates.
Subordinate Certificate Writedown Amount: With respect to the Subordinate
Certificates and as to any Distribution Date, the amount by which (i) the sum of the Current
Principal Amounts of the Certificates (after giving effect to the distribution of principal
and the allocation of applicable Realized Losses in reduction of the Current Principal
Amounts of the Certificates on such Distribution Date in accordance with the definition of
Net Deferred Interest) exceeds (y) the aggregate Scheduled Principal Balances of the
Mortgage Loans on the Due Date related to such Distribution Date.
Subordinate Certificates: The Non-Offered Subordinate Certificates (other than the
Class XP Certificates) and the Offered Subordinate Certificates.
Subordinate Optimal Principal Amount: With respect to the Subordinate Certificates
and any Distribution Date, an amount equal to the sum, without duplication, of the following
from each Loan Group or Sub-Group (after giving effect to the application of such amounts to
cover Deferred Interest on the Mortgage Loans on such Distribution Date but in no event
greater than the aggregate Current Principal Amount of the Subordinate Certificates
immediately prior to such Distribution Date):
(i) the related Subordinate Percentage of the principal portion of all
Scheduled Payments due on each Outstanding Mortgage Loan in the related Loan Group or
Sub-Group on the related Due Date as specified in the amortization schedule at the time
applicable thereto (after adjustment for previous Principal Prepayments but before any
adjustment to such amortization schedule by reason of any bankruptcy or similar proceeding
or any moratorium or similar waiver or grace period);
(ii) the related Subordinate Prepayment Percentage of the Scheduled Principal
Balance of each Mortgage Loan in the related Loan Group or Sub-Group that was the subject of
a Principal Prepayment in full received by the Servicer during the related Prepayment Period;
(iii) the related Subordinate Prepayment Percentage of the amount of all Principal
Prepayments in part received by the Servicer in respect to the Mortgage Loan in the related
Loan Group or Sub-Group during the related Prepayment Period;
(iv) the excess, if any, of (a) all Net Liquidation Proceeds allocable to principal
received during the related Prepayment Period in respect of each Liquidated Mortgage Loan in
the related Loan Group or Sub-Group and all Subsequent Recoveries received in respect of
each Liquidated Mortgage Loan during the related Due Period over (b) the sum of the amounts
distributable to the Senior Certificates in the related Certificate Group pursuant to clause
(iv) of the definition of Senior Optimal Principal Amount on such Distribution Date;
(v) the related Subordinate Prepayment Percentage of the sum of (a) the Scheduled
Principal Balance of each Mortgage Loan in the related Loan Group or Sub-Group that was
purchased by the Seller in connection with such Distribution Date and (b) the difference, if
any, between the Scheduled Principal Balance of a Mortgage Loan in the related Loan Group or
Sub-Group that has been replaced by the Seller with a Substitute Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement in connection with such Distribution Date over the
Scheduled Principal Balance of such Substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Current Principal Amounts of the Senior
Certificates in the related Certificate Group have all been reduced to zero, 100% of the
Senior Optimal Principal Amount for the related Loan Group or Sub-Group. After the
aggregate Current Principal Amount of the Subordinate Certificates has been reduced to zero,
the Subordinate Optimal Principal Amount shall be zero.
Subordinate Percentage: With respect to each Loan Group or Sub-Group on any
Distribution Date, 100% minus the Senior Percentage for the related Certificate Group as of
such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Loan Group or Sub-Group on
any Distribution Date, 100% minus the Senior Prepayment Percentage for the related
Certificate Group as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received during the
related Due Period by the Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 4.02) or surplus amounts held by the Servicer to cover estimated
expenses (including, but not limited to, recoveries in respect of the representations and
warranties made by the Seller pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a Liquidated Mortgage Loan or the disposition of an REO Property prior to the
related Prepayment Period that resulted in a Realized Loss, after liquidation or disposition
of such Mortgage Loan.
Subordinate Reserve Fund: As described in Section 4.05 herein.
Substitute Mortgage Loan: A mortgage loan tendered to the Trust pursuant to 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, (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 and (ix) has a negative amortization
cap of no more than 110%.
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 Trustee 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.
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: ▇▇▇▇▇ Fargo Bank, National Association, or its successor in interest, or
any successor trustee appointed as herein provided.
2005-AR5 REMIC: Any of REMIC I, REMIC II, REMIC III and REMIC IV.
Uncertificated Accrued Interest: With respect to any Uncertificated 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 or
Uncertificated Notional Amount, as applicable, immediately prior to such Distribution Date.
Uncertificated Accrued Interest for the Uncertificated 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 Interests for any
Distribution Date, any Prepayment Interest Shortfalls and Relief Act Shortfalls (to the
extent not covered by Compensating Interest Payments) shall be allocated among REMIC I
Regular Interests ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and Z-4, pro rata, based on, and to the
extent of, Uncertificated Accrued Interest, as calculated without application of this
sentence. For purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC II Regular Interests for any Distribution Date, any Prepayment Interest Shortfalls and
Relief Act Shortfalls (to the extent not covered by Compensating Interest Payments) shall be
allocated among each of the REMIC II Regular Interests, pro rata, based on, and to the
extent of, Uncertificated Accrued Interest, as calculated without application of this
sentence. For purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC III Regular Interests for any Distribution Date, any Prepayment Interest Shortfalls
and Relief Act Shortfalls (to the extent not covered by Compensating Interest Payments)
shall be allocated among REMIC III Regular Interests to the same extent such amounts are
allocated to the related Class of Certificates.
Uncertificated Notional Amount: With respect to REMIC III Regular Interests ▇-▇-▇,
▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X, the aggregate principal
balance of the REMIC II Regular Interests.
Uncertificated Pass-Through Rate: The Uncertificated REMIC I Pass-Through Rate, the
Uncertificated REMIC II Pass-Through Rate, the Uncertificated REMIC III Pass-Through Rate or
the Uncertificated REMIC IV Pass-Through Rate, as applicable. Any monthly calculation of
interest at a stated rate for the REMIC I Regular Interests, the REMIC II Regular Interests,
REMIC III Regular ▇▇▇▇▇▇▇▇ ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 or
M-X or the REMIC IV Regular Interests shall be based upon annual interest at such rate
divided by twelve.
Uncertificated Principal Balance: The principal amount of any Uncertificated Regular
Interest outstanding as of any date of determination. The Uncertificated Principal Balance
of each REMIC Regular Interest shall never be less than zero.
Uncertificated Regular Interests: The REMIC I Regular Interests, the REMIC II Regular
Interests and REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇,
IV-X-1, IV-X-2 and M-X.
Uncertificated REMIC I Pass-Through Rate: With respect to any Distribution Date and
(i) REMIC I Regular Interests Y-1 and Z-1, the weighted average of the Net Mortgage Rates on
the Group I Mortgage Loans, (ii) REMIC I Regular Interests Y-2 and Z-2, the weighted average
of the Net Mortgage Rates on the Group II Mortgage Loans, (iii) REMIC I Regular Interests
Y-3 and Z-3, the weighted average of the Net Mortgage Rates on the Group III Mortgage Loans
and (iv) REMIC I Regular Interests Y-4 and Z-4, the weighted average of the Net Mortgage
Rates on the Group IV Mortgage Loans.
Uncertificated REMIC II Pass-Through Rate: With respect to any Distribution Date
and: (A) (i) REMIC II Regular Interests LT1, LT2 and LT5, the weighted average of the Net
Mortgage Rates on the Group I Mortgage Loans, (ii) REMIC II Regular Interests LT3 and LT6,
zero (0.00%), (iii) REMIC II Regular Interests LT4 and LT7, twice the weighted average of
the Net Mortgage Rates on the Group I Mortgage Loans; (B) (i) REMIC II Regular Interests
LT8, LT9, LT12 and LT15, the weighted average of the Net Mortgage Rates on the Group II
Mortgage Loans, (ii) REMIC II Regular Interests LT10, LT13 and LT16, zero (0.00%), (iii)
REMIC II Regular Interests LT11, LT14 and LT17, twice the weighted average of the Net
Mortgage Rates on the Group II Mortgage Loans; (C) (i) REMIC II Regular Interests LT18 and
LT19, the weighted average of the Net Mortgage Rates on the Group III Mortgage Loans, (ii)
REMIC II Regular Interest LT20, zero (0.00%), (iii) REMIC II Regular Interest LT21, twice
the weighted average of the Net Mortgage Rates on the Group III Mortgage Loans; (D) (i)
REMIC II Regular Interests LT22, LT23 and LT26, the weighted average of the Net Mortgage
Rates on the Group IV Mortgage Loans, (ii) REMIC II Regular Interests LT24 and LT27, zero
(0.00%), (iii) REMIC II Regular Interests LT25 and LT28, twice the weighted average of the
Net Mortgage Rates on the Group IV Mortgage Loans; (E) (i) REMIC II Regular Interest LT29,
the weighted average of the Uncertificated REMIC I Pass-Through Rates on the REMIC I Regular
Interests, Y-1, Y-2, Y-3 and Y-4, (ii) REMIC II Regular Interest LT30, zero (0.00%), (iii)
REMIC II Regular Interest LT31, twice the weighted average of the Uncertificated REMIC I
Pass-Through Rates on the REMIC I Regular Interests, Y-1, Y-2, Y-3 and Y-4; and (F) REMIC II
Regular ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4, the Uncertificated REMIC I Pass-Through
Rates on the REMIC I Regular Interests Y-1, Y-2, Y-3 and Y-4, respectively.
Uncertificated REMIC III Pass-Through Rate: With respect to any Distribution Date and
(i) REMIC III Regular Interest I-X-1, a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of (1) the Uncertificated Pass-Through Rate for
REMIC II Regular Interests LT1, LT2, LT5 and LT-Y1 minus the related Marker Rate, applied to a
notional amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LT1, LT2, LT5 and LT-Y1, (2) the Uncertificated Pass-Through Rate for REMIC II
Regular Interests LT4 and LT7 minus twice the related Marker Rate, applied to a notional
amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular Interests
LT4 and LT7, and (3) the Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT-Y1 minus the related Marker Rate, applied to a notional amount equal to the excess of the
aggregate principal balance of the Group I Loans over the aggregate Uncertificated Principal
Balance of REMIC II Regular ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇ and LT-Y1 and the
denominator of which is the aggregate principal balance of the Group I Loans; (ii) REMIC III
Regular Interest I-X-2, a rate per annum equal to the percentage equivalent of a fraction,
the numerator of which is the sum of (1) the Uncertificated Pass-Through Rate for REMIC II
Regular Interests LT1, LT2, LT5 and LT-Y1 minus the related Marker Rate, applied to a
notional amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LT1, LT2, LT5 and LT-Y1, (2) the Uncertificated Pass-Through Rate for REMIC II
Regular Interests LT4 and LT7 minus twice the related Marker Rate, applied to a notional
amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular Interests
LT4 and LT7, and (3) the Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT-Y1 minus the related Marker Rate, applied to a notional amount equal to the excess of the
aggregate principal balance of the Group I Loans over the aggregate Uncertificated Principal
Balance of REMIC II Regular ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇ and LT-Y1 and the
denominator of which is the aggregate principal balance of the Group I Loans; (iii) REMIC
III Regular Interest II-X-1, a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of (1) the Uncertificated Pass-Through Rate for
REMIC II Regular Interests LT8, LT9, LT 12, LT15 and LT-Y2 minus the related Marker Rate,
applied to a notional amount equal to the aggregate Uncertificated Principal Balance of
REMIC II Regular Interests LT8, LT9, LT 12, LT15 and LT-Y2, (2) the Uncertificated
Pass-Through Rate for REMIC II Regular Interests LT11, LT14 and LT17 minus twice the related
Marker Rate, applied to a notional amount equal to the aggregate Uncertificated Principal
Balance of REMIC II Regular Interests LT11, LT14 and LT17, (3) the Uncertificated
Pass-Through Rate for REMIC II Regular Interest LT-Y2 minus the related Marker Rate, applied
to a notional amount equal the excess of the aggregate principal balance of the Group II
Loans over the aggregate Uncertificated Principal Balance of REMIC II Regular Interests LT8,
LT9, LT10, LT11, LT12, LT13, LT14, LT15, LT16, LT17 and LT-Y2 and the denominator of which
is the aggregate principal balance of the Group II Loans; (iv) REMIC III Regular Interest
II-X-2, a rate per annum equal to the percentage equivalent of a fraction, the numerator of
which is the sum of (1) the Uncertificated Pass-Through Rate for REMIC II Regular
Interests LT8, LT9, LT 12, LT15 and LT-Y2 minus the related Marker Rate, applied to a
notional amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LT8, LT9, LT 12, LT15 and LT-Y2, (2) the Uncertificated Pass-Through Rate for
REMIC II Regular Interests LT11, LT14 and LT17 minus twice the related Marker Rate, applied
to a notional amount equal to the aggregate Uncertificated Principal Balance of REMIC II
Regular Interests LT11, LT14 and LT17, and (3) the Uncertificated Pass-Through Rate for
REMIC II Regular Interest LT-Y2 minus the related Marker Rate, applied to a notional amount
equal the excess of the aggregate principal balance of the Group II Loans over the aggregate
Uncertificated Principal Balance of REMIC II Regular Interests LT8, LT9, LT10, LT11, LT12,
LT13, LT14, LT15, LT16, LT17 and LT-Y2 and the denominator of which is the aggregate
principal balance of the Group II Loans; (v) REMIC III Regular Interest II-X-3, a rate per
annum equal to the percentage equivalent of a fraction, the numerator of which is the sum of
(1) the Uncertificated Pass-Through Rate for REMIC II Regular Interests LT8, LT9, LT 12,
LT15 and LT-Y2 minus the related Marker Rate, applied to a notional amount equal to the
aggregate Uncertificated Principal Balance of REMIC II Regular Interests LT8, LT9, LT 12,
LT15 and LT-Y2, (2) the Uncertificated Pass-Through Rate for REMIC II Regular Interests
LT11, LT14 and LT17 minus twice the related Marker Rate, applied to a notional amount equal
to the aggregate Uncertificated Principal Balance of REMIC II Regular Interests LT11, LT14
and LT17, and (3) the Uncertificated Pass-Through Rate for REMIC II Regular Interest
LT-Y2 minus the related Marker Rate, applied to a notional amount equal the excess of the
aggregate principal balance of the Group II Loans over the aggregate Uncertificated
Principal Balance of REMIC II Regular Interests LT8, LT9, LT10, LT11, LT12, LT13, LT14,
LT15, LT16, LT17 and LT-Y2 and the denominator of which is the aggregate principal balance
of the Group II Loans; (vi) REMIC III Regular Interest III-X-1, a rate per annum equal to
the percentage equivalent of a fraction, the numerator of which is the sum of (1) the
Uncertificated Pass-Through Rate for REMIC II Regular Interests LT18, LT19 and LT-Y3 minus
the related Marker Rate, applied to a notional amount equal to the aggregate Uncertificated
Principal Balance of REMIC II Regular Interests LT18, LT19 and LT-Y3, (2) the
Uncertificated Pass-Through Rate for REMIC II Regular Interest LT21 minus twice the related
Marker Rate, applied to a notional amount equal to the Uncertificated Principal Balance of
REMIC II Regular Interest LT21, and (3) the Uncertificated Pass-Through Rate for REMIC II
Regular Interest LT-Y3 minus the related Marker Rate, applied to a notional amount equal to
the excess of the aggregate principal balance of the Group III Loans over the aggregate
Uncertificated Principal Balance of REMIC II Regular Interests LT18, LT19, LT20, LT21 and
LT-Y3, and the denominator of which is the aggregate principal balance of the Group III
Loans; (vii) REMIC III Regular Interest IV-X-1, a rate per annum equal to the percentage
equivalent of a fraction, the numerator of which is the sum of (1) the Uncertificated
Pass-Through Rate for REMIC II Regular Interests LT18, LT19 and LT-Y3 minus the related
Marker Rate, applied to a notional amount equal to the aggregate Uncertificated Principal
Balance of REMIC II Regular Interests LT18, LT19 and LT-Y3, (2) the Uncertificated
Pass-Through Rate for REMIC II Regular Interest LT21 minus twice the related Marker Rate,
applied to a notional amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT21, and (3) the Uncertificated Pass-Through Rate for REMIC II
Regular Interest LT-Y3 minus the related Marker Rate, applied to a notional amount equal to
the excess of the aggregate principal balance of the Group III Loans over the aggregate
Uncertificated Principal Balance of REMIC II Regular Interests LT18, LT19, LT20, LT21 and
LT-Y3, and the denominator of which is the aggregate principal balance of the Group III
Loans; (viii) REMIC III Regular Interest IV-X-2, a rate per annum equal to the percentage
equivalent of a fraction, the numerator of which is the sum of (1) the Uncertificated
Pass-Through Rate for REMIC II Regular Interests LT22, LT23, LT26 and LT-Y4 minus the
related Marker Rate, applied to a notional amount equal to the aggregate Uncertificated
Principal Balance of REMIC II Regular Interests LT22, LT23, LT26 and LT-Y4, (2) the
Uncertificated Pass-Through Rate for REMIC II Regular Interests LT25 and LT28 minus twice
the related Marker Rate, applied to a notional amount equal to the aggregate Uncertificated
Principal Balance of REMIC II Regular Interests LT25 and LT28, and (3) the Uncertificated
Pass-Through Rate for REMIC II Regular Interest LT-Y4 minus the related Marker Rate,
applied to a notional amount equal to the excess of the aggregate principal balance of the
Group IV Loans over the aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LT22, LT23, LT24, LT25, LT26, LT27, LT28 and LT-Y4, and the denominator of which
is the aggregate principal balance of the Group IV Loans; and (ix) REMIC III Regular
Interest M-X, a rate per annum equal to the percentage equivalent of a fraction, the
numerator of which is the sum of (1) the Uncertificated Pass-Through Rate for REMIC II
Regular Interests LT1, LT2, LT5, LT8, LT9. ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, LT19, LT22, LT23, LT26, LT29,
▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4 minus the related Marker Rate, applied to a notional amount
equal to the aggregate Uncertificated Principal Balance of REMIC II Regular ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇. ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, LT19, LT22, LT23, LT26, ▇▇▇▇, ▇▇-▇▇, ▇▇-▇▇, ▇▇-▇▇ and
LT-Y4 and (2) the Uncertificated Pass-Through Rate for REMIC II Regular Interests LT 4, LT7,
LT11, LT14, LT17, LT21, LT25, LT28 and LT31 minus the related Marker Rate, applied to a
notional amount equal to the aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LT 4, LT7, LT11, LT14, LT17, LT21, LT25, LT28 and LT31, and the denominator of
which is the aggregate principal balance of the REMIC II Regular Interests.
Uncertificated REMIC IV Pass-Through Rate: No REMIC IV Regular Interest will have an
Uncertificated REMIC IV Pass-Through Rate, but will be entitled to 100% of all amounts
distributed or deemed distributed on the REMIC III Regular Interest bearing the same
designation.
Undercollateralized Amount: With respect any Certificate Group and Distribution
Date, the excess of (i) the aggregate Current Principal Amount of such Certificate Group
over (ii) the aggregate Scheduled Principal Balance of the Mortgage Loans in the related
Loan Group.
Undercollateralized Certificate Group: With respect any Distribution Date, a
Certificate Group for which the related Undercollateralized Amount (calculated on such
Distribution Date after giving effect to distributions to be made thereon (other than
amounts to be distributed pursuant to Section 6.01(a)(E) on such Distribution Date)) exceeds
zero.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO Property
such that the complete restoration of such Mortgaged Property or related REO Property is not
fully reimbursable by the hazard insurance policies required to be maintained pursuant to
this 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 and
the Class R-X 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, 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.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01 Conveyance of Mortgage Loans to Trustee. (a) The Depositor concurrently with
the execution and delivery of this Agreement sells, transfers and assigns to the Trust
without recourse all its right, title and interest in and to (i) the Mortgage Loans
identified in the Mortgage Loan Schedule, including all interest due and principal received
with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of
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 Custodial
Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held
by the Trustee in the Distribution Account, (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 Class R Deposit, (viii) such assets as
shall from time to time be credited or are required by the terms of this Agreement to be
credited to any of the Accounts 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. The Class II-A-2 Certificateholders and the
Class III-A-2 Certificateholders will also have the benefit of the Certificate Insurance
Policy.
(b) In connection with the above transfer and assignment, the Seller hereby deposits with the
Trustee or the Custodian, as its agent, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse (A) to the order of the Trustee or
(B) in the case of a Mortgage Loan registered on the MERS system, in blank, and in each case
showing an unbroken chain of endorsements from the originator thereof to the Person
endorsing it to the Trustee, or lost note affidavit together with a copy of the related
Mortgage Note,
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which
shall have been recorded (or if the original is not available, a copy), with evidence of
such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in
recordable form),
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may
be in the form of a blanket assignment if permitted in the jurisdiction in which the
Mortgaged Property is located) to "▇▇▇▇▇ Fargo Bank, National Association, as Trustee", with
evidence of recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which
the related Mortgaged Property is located in a state other than Maryland, Tennessee, South
Carolina, Mississippi and Florida, or an Opinion of Counsel has been provided as set forth
in this Section 2.01(b), shall be in recordable form),
(iv) all intervening assignments of the Security Instrument, if applicable and only to the
extent available to the Depositor with evidence of recording thereon,
(v) the original or a copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any,
(vi) the original policy of title insurance or mortgagee's certificate of title insurance or
commitment or binder for title insurance, and
(vii) originals of all modification agreements, if applicable and available.
provided, however, that in lieu of the foregoing, the Depositor may deliver the following
documents, under the circumstances set forth below: (w) in lieu of the original Security
Instrument, assignments to the Trustee or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information relating to
the Security Instrument required to be included thereon, be delivered to recording offices
for recording and have not been returned to the Depositor in time to permit their delivery
as specified above, the Depositor may deliver a true copy thereof with a certification by
the Depositor, on the face of such copy, substantially as follows: "Certified to be a true
and correct copy of the original, which has been transmitted for recording"; (x) in lieu of
the Security Instrument, assignment to the Trustee or intervening assignments thereof, if
the applicable jurisdiction retains the originals of such documents (as evidenced by a
certification from the Depositor to such effect) the Depositor may deliver photocopies of
such documents containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (y) the Depositor
shall not be required to deliver intervening assignments or Mortgage Note endorsements
between the Seller and the Depositor, and between the Depositor and the Trustee; and
provided, further, however, that in the case of Mortgage Loans which have been prepaid in
full after the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, may deliver to the Trustee or the Custodian, as its agent, a
certification to such effect and shall deposit all amounts paid in respect of such Mortgage
Loans in the Custodial Account on the Closing Date. The Depositor shall deliver such
original documents (including any original documents as to which certified copies had
previously been delivered) to the Trustee or the Custodian, as its agent, promptly after
they are received. The Depositor shall cause the Seller, at its expense, to cause each
assignment of the Security Instrument to the Trustee to be recorded not later than 180 days
after the Closing Date, unless (a) such recordation is not required by the Rating Agencies
or an Opinion of Counsel addressed to the Trustee has been provided to the Trustee (with a
copy to the Custodian) which states that recordation of such Security Instrument is not
required to protect the interests of the Certificateholders in the related Mortgage Loans or
(b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage
as the mortgagee of record solely as nominee for the Seller and its successor and assigns;
provided, however, that each assignment shall be submitted for recording by the Seller in
the manner described above, at no expense to the Trust or the Trustee or the Custodian, as
its agent, upon the earliest to occur of: (i) reasonable direction by the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than 25% of the
Trust, (ii) the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing
transfer as described in Section 8.02 hereof. Notwithstanding the foregoing, if the Seller
fails to pay the cost of recording the assignments, such expense will be paid by the Trustee
and the Trustee shall be reimbursed for such expenses by the Trust in accordance with
Section 9.05.
Section 2.02 Acceptance of Mortgage Loans by Trustee. (a) The Trustee (on behalf of the
Trust) acknowledges the sale, transfer and assignment of the Trust Fund to it by the
Depositor and receipt of, subject to further review and the exceptions which may be noted
pursuant to the procedures described below, and declares that it holds, the documents (or
certified copies thereof) delivered to it or the Custodian, as its agent, pursuant to
Section 2.01, and declares that it will continue to hold those documents and any amendments,
replacements or supplements thereto and all other assets of the Trust Fund delivered to it
as Trustee in trust for the use and benefit of all present and future Holders of the
Certificates. On the Closing Date, with respect to the Mortgage Loans, the Custodian, shall
acknowledge with respect to each Mortgage Loan by delivery to the Depositor and the Trustee
of an Initial Certification receipt of the Mortgage File, but without review of such
Mortgage File, except to the extent necessary to confirm that such Mortgage File contains
the related Mortgage Note or lost note affidavit. No later than 90 days after the Closing
Date (or with respect to any Substitute Mortgage Loan, within five Business Days after the
receipt by the Trustee or Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders and the Certificate Insurer, to review or cause to be reviewed by the
Custodian on its behalf (under the Custodial Agreement), each Mortgage File delivered to it
and to execute and deliver, or cause to be executed and delivered, to the Depositor and the
Trustee an Interim Certification. In conducting such review, the Trustee or Custodian will
ascertain whether all required documents have been executed and received, and based on the
Mortgage Loan Schedule, whether those documents relate, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage Loans it has
received, as identified in the Mortgage Loan Schedule. In performing any such review, the
Trustee or the Custodian, as its agent, may conclusively rely on the purported due execution
and genuineness of any such document and on the purported genuineness of any signature
thereon. If the Trustee or the Custodian, as its agent, finds any document constituting
part of the Mortgage File has not been executed or received, or to be unrelated, determined
on the basis of the Mortgagor name, original principal balance and loan number, to the
Mortgage Loans identified in Exhibit B, or to appear defective on its face (a "Material
Defect"), the Trustee or the Custodian, as its agent, shall promptly notify the Seller. In
accordance with the Mortgage Loan Purchase Agreement, the Seller shall correct or cure any
such defect within ninety (90) days from the date of notice from the Trustee or the
Custodian, as its agent, of the defect and if the Seller fails to correct or cure the defect
within such period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee or the Custodian, as its agent,
shall enforce the Seller's obligation pursuant to the Mortgage Loan Purchase Agreement,
within 90 days from the Trustee's or the Custodian's notification, to purchase such Mortgage
Loan at the Repurchase Price; provided that, if such defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3)(A) of the Code and
Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without
reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to
be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4),
(5), (6), (7) and (9), 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 and the Certificate Insurer, the Mortgage Files delivered to it and will
execute and deliver or cause to be executed and delivered to the Depositor and the Trustee a
Final Certification. In conducting such review, the Trustee or the Custodian, as its agent,
will ascertain whether an original of each document required to be recorded has been
returned from the recording office with evidence of recording thereon or a certified copy
has been obtained from the recording office. If the Trustee or the Custodian, as its agent,
finds a Material Defect, the Trustee or the Custodian, as its agent, shall promptly notify
the Seller (provided, however, that with respect to those documents described in Sections
2.01(b)(iv), (v) and (vii), the Trustee's and Custodian's obligations shall extend only to
the documents actually delivered to the Trustee or the Custodian pursuant to such
Sections). In accordance with the Mortgage Loan Purchase Agreement, the Seller shall
correct or cure any such defect within 90 days from the date of notice from the Trustee or
the Custodian, as its agent, of the Material Defect and if the Seller is unable to cure such
defect within such period, and if such defect materially and adversely affects the interests
of the Certificateholders in the related Mortgage Loan, the Trustee shall enforce the
Seller's obligation under the Mortgage Loan Purchase Agreement to provide a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase such Mortgage Loan at
the Repurchase Price; provided, however, that if such defect would cause the Mortgage Loan
to be other than a "qualified mortgage" as defined in Section 860G(a)(3)(A) of the Code and
Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without
reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to
be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4),
(5), (6), (7) and (9), 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. 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.
(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 Servicer the Repurchase Price for
deposit in the Custodial 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 Custodial Account, the Depositor shall notify the Trustee and the
Custodian, as agent of the Trustee (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 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 Servicer, to reflect such repurchase and shall promptly notify the
Trustee of such amendment and the Trustee shall promptly notify the Rating Agencies and the
Servicer of such amendment. The obligation of the Seller to repurchase any Mortgage Loan as
to which such a defect in a constituent document exists shall be the sole remedy respecting
such defect available to the Certificateholders or to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase Agreement. (a) The
Depositor hereby assigns to the Trustee, on behalf of Trust for the benefit of the
Certificateholders and the Certificate Insurer, all of its right, title and interest in the
Mortgage Loan Purchase Agreement. 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 Trust 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 Seller, the 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,
the Certificate Insurer or the Trustee in the related Mortgage Loan, the party discovering
the breach shall give prompt written notice of the breach to the other parties. The Seller,
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
Trust; provided, however, that if there is a breach of any representation set forth in the
Mortgage Loan Purchase Agreement, or Section 2.04 of this Agreement, as applicable, 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 Servicer for deposit in the Custodial 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 Trustee shall amend the Mortgage Loan Schedule to reflect such
repurchase and 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
(on behalf of the Trust) 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 Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall not be permitted after the termination of the two-year
period beginning on the Startup Day; provided, further, that if the breach would cause the
Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9),
without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to
be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4),
(5), (6), (7) and (9), 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 the 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 the Custodian as
agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the
Trustee or the Custodian, as agent for 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 those 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 (on behalf of the Trust). The 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, who shall then deliver such amended Mortgage Loan Schedule to the
Rating Agencies.
Section 2.05 Issuance of Certificates.
(a) The Trustee acknowledges the assignment to it (on behalf of the Trust) 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.
(b) 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 (i) the REMIC I Regular Interests, and
the other assets of REMIC II, for the benefit of the holders of the REMIC II Interests, (ii)
the REMIC II Regular Interests, and the other assets of REMIC III, for the benefit of the
holders of the REMIC III Interests, and (iii) REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X, and the other assets of REMIC IV,
for the benefit of the holders of the REMIC IV Interests. The Trustee acknowledges receipt
of the REMIC I Regular Interests, the REMIC II Regular Interests and REMIC III Regular
Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X (each of
which are uncertificated) and the other assets of REMIC II, REMIC III and REMIC IV 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 Interests, REMIC III Interests and REMIC IV Interests, as
applicable.
Section 2.06 Representations and Warranties Concerning the Depositor. The Depositor hereby
represents and warrants to the Servicer, the Certificate Insurer and the Trustee as follows:
(i) the Depositor (a) is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and (b) is qualified and in good standing as a
foreign corporation to do business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently conducted or on the
Depositor's ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to carry on its business as
presently conducted and to enter into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement have been duly authorized
by all necessary corporate action on the part of the Depositor; and neither the execution
and delivery of this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor or its properties or
the articles of incorporation or by-laws of the Depositor, except those conflicts, breaches
or defaults which would not reasonably be expected to have a material adverse effect on the
Depositor's ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of this Agreement and the
consummation of the transactions contemplated hereby do not require the consent or approval
of, the giving of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have already been obtained,
given or made;
(v) this Agreement has been duly executed and delivered by the Depositor and, assuming due
authorization, execution and delivery by the other parties hereto, constitutes a valid and
binding obligation of the Depositor enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge of the
Depositor, threatened against the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions contemplated by
this Agreement or (ii) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if determined adversely to
the Depositor materially and adversely affect the Depositor's ability to enter into this
Agreement or perform its obligations under this Agreement; and the Depositor is not in
default with respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions contemplated by
this Agreement; and
(vii) immediately prior to the transfer and assignment to the Trust, each Mortgage Note and
each Mortgage were not subject to an assignment or pledge, and the Depositor had good and
marketable title to and was the sole owner thereof and had full right to transfer and sell
such Mortgage Loan to the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
Section 2.07 [Reserved].
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Servicer to Act as Servicer. The Servicer shall service and administer the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing Practices and
shall have full power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration which the Servicer may deem
necessary or desirable and consistent with the terms of this Agreement and with Accepted
Servicing Practices and shall exercise the same care that it customarily employs for its own
account. Except as set forth in this Agreement, the Servicer shall service the Mortgage
Loans in accordance with Accepted Servicing Practices in compliance with the servicing
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, which include, but are not limited to, provisions
regarding the liquidation of Mortgage Loans, the collection of Mortgage Loan payments, the
payment of taxes, insurance and other charges, the maintenance of hazard insurance with a
Qualified Insurer, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of Primary Mortgage
Insurance Policies, insurance claims, and title insurance, management of REO Property,
permitted withdrawals with respect to REO Property, liquidation reports, and reports of
foreclosures and abandonments of Mortgaged Property, the transfer of Mortgaged Property, the
release of Mortgage Loan Documents, annual statements, and examination of records and
facilities. In the event of any conflict, inconsistency or discrepancy between any of the
servicing provisions of this Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ Mae
Guide, the provisions of this Agreement shall control and be binding upon the Depositor and
the Servicer.
Consistent with the terms of this Agreement, the Servicer may waive, modify or vary
any term of any Mortgage Loan or consent to the postponement of any such term or in any
manner grant indulgence to any Mortgagor if in the Servicer's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not materially
adverse to the Certificateholders, provided, however, the Servicer shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage Interest Rate,
forgive the payment of principal or interest (unless in connection with the liquidation of
the related Mortgage Loan or except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan), or extend the final
maturity date of such Mortgage Loan, unless such Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable or waive a prepayment
penalty or charge, without the written consent of the Depositor and, provided, further, that
no such modification shall reduce the interest rate on a Mortgage Loan below the Servicing
Fee Rate. Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered, to prepare, execute and deliver, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged
Properties.
The Servicer shall not waive any Prepayment Charge unless: (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally, (ii) the enforcement thereof is
illegal, or any local, state or federal agency has threatened legal action if the prepayment
penalty is enforced, (iii) the mortgage debt has been accelerated in connection with a
foreclosure or other involuntary payment or (iv) such waiver is standard and customary in
servicing similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Servicer, maximize recovery of total
proceeds taking into account the value of such Prepayment Charge and the related Mortgage
Loan. In no event will the Servicer waive a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable
default. If a Prepayment Charge is waived, but does not meet the standards described above,
then the Servicer is required to pay the amount of such waived Prepayment Charge, for the
benefit of the Class R Certificates, by depositing such amount into the Collection Account
by the immediately succeeding Distribution Account Deposit Date.
The Servicer shall provide to each Mortgagor of a Mortgage Loan all payment options
listed in the related Mortgage Note that are available to such Mortgagor with respect to
such payment, notwithstanding any provision in the related Mortgage Note that explicitly
states or implies that providing such options is optional for the servicer of such Mortgage
Loan or the owner or holder of the related Mortgage Note.
The Servicer shall furnish information regarding the borrower credit files related to
each Mortgage Loan to credit reporting agencies in compliance with the provisions of the
Fair Credit Reporting Act and the applicable implementing regulations, on a monthly basis.
Notwithstanding the foregoing, the Servicer shall not permit any modification with
respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage
Loan within the meaning of Section 1001 of the Code and any proposed, temporary or final
regulations promulgated thereunder (other than in connection with a proposed conveyance or
assumption of such Mortgage Loan that is treated as a Principal Prepayment in Full) and
cause any REMIC formed under this Agreement to fail to qualify as a REMIC under the Code.
Upon request, the Trustee shall furnish the Servicer with any powers of attorney, in
substantially the form attached hereto as Exhibit I, and other documents in form as provided
to it necessary or appropriate to enable the Servicer to service and administer the related
Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation in possession of
the Trustee regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Certificateholders, the FDIC, and the supervisory agents and examiners of the FDIC,
such access being afforded only upon reasonable prior written request and during normal
business hours at the office of the Trustee; 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.
The Trustee shall execute and deliver to the Servicer any court pleadings, requests
for trustee's sale or other documents prepared by the Servicer as 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-AR5 REMIC shall exist, the
Trustee shall act in accordance herewith to assure continuing treatment of such 2005-AR5
REMIC as a REMIC, and the Trustee shall comply with any directions of the Depositor or the
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 addressed to the
Trustee prepared at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, accept any contribution to any 2005-AR5 REMIC after the Startup
Day without receipt of a REMIC Opinion addressed to the Trustee.
Section 3.03 Monitoring of Subservicers. (a) The Servicer shall perform all of its servicing
responsibilities hereunder or may cause a subservicer to perform any such servicing
responsibilities on its behalf, but the use by the Servicer of a subservicer shall not
release the Servicer from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each subservicer as fully as if such
acts and omissions were those of the Servicer. Any such subservicer must be a ▇▇▇▇▇▇ ▇▇▇
approved seller/servicer or a ▇▇▇▇▇▇▇ Mac seller/servicer in good standing and no event
shall have occurred, including but not limited to, a change in insurance coverage, which
would make it unable to comply with the eligibility requirements for lenders imposed by
▇▇▇▇▇▇ ▇▇▇ or for seller/servicers by ▇▇▇▇▇▇▇ Mac, or which would require notification to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Servicer shall pay all fees and expenses of each subservicer
from its own funds, and a subservicer's fee shall not exceed the Servicing Fee.
(b)At the cost and expense of the Servicer, without any right of reimbursement
from the Custodial Account, the Servicer shall be entitled to terminate the rights and
responsibilities of a subservicer and arrange for any servicing responsibilities to be
performed by a successor subservicer meeting the requirements in the preceding paragraph,
provided, however, that nothing contained herein shall be deemed to prevent or prohibit the
Servicer, at the Servicer's option, from electing to service the related Mortgage Loans
itself. In the event that the Servicer's responsibilities and duties under this Agreement
are terminated pursuant to Section 7.07, 8.01 or 10.01, and if requested to do so by the
Depositor, the Servicer shall at its own cost and expense terminate the rights and
responsibilities of each subservicer effective as of the date of termination of the
Servicer. The Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of each subservicer from the Servicer's own funds
without reimbursement from the Depositor.
(c)Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a subservicer or any reference herein to
actions taken through a subservicer or otherwise, the Servicer shall not be relieved of its
obligations to the Depositor and shall be obligated to the same extent and under the same
terms and conditions as if it alone were servicing and administering the Mortgage Loans.
The Servicer shall be entitled to enter into an agreement with a subservicer for
indemnification of the Servicer by the subservicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification.
(d)Any subservicing agreement and any other transactions or services relating
to the Mortgage Loans involving a subservicer shall be deemed to be between such subservicer
and Servicer alone, and the Depositor shall have no obligations, duties or liabilities with
respect to such Subservicer including no obligation, duty or liability of Depositor to pay
such subservicer's fees and expenses. For purposes of distributions and advances by the
Servicer pursuant to this Agreement, the Servicer shall be deemed to have received a payment
on a Mortgage Loan when a subservicer has received such payment.
Section 3.04 Fidelity Bond. The Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage with respect
to all directors, officers, employees and other Persons acting on the Servicer's behalf, and
covering errors and omissions in the performance of the Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in a form generally
acceptable for entities serving as servicers and in the amount required by ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac.
Section 3.05 Power to Act; Procedures. The Servicer shall service the Mortgage Loans and
shall have full power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or desirable in
connection with the servicing and administration of the Mortgage Loans, including but not
limited to the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan, in each case, in accordance
with the provisions of this Agreement, as applicable; provided, however, that the Servicer
shall not (and consistent with its responsibilities under 3.03, shall not permit any
subservicer to) knowingly or intentionally take any action, or fail to take (or fail to
cause to be taken) any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as
the case may be, would cause any 2005-AR5 REMIC to fail to qualify as a REMIC or result in
the imposition of a tax upon the Trust Fund (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless the Servicer has
received an Opinion of Counsel (but not at the expense of the Servicer) to the effect that
the contemplated action would not cause any 2005-AR5 REMIC to fail to qualify as a REMIC or
result in the imposition of a tax upon any 2005-AR5 REMIC. The Trustee shall furnish the
Servicer, upon written request from a Servicing Officer, with any powers of attorney
empowering the Servicer to execute and deliver instruments of satisfaction or cancellation,
or of partial or full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action relating to the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement, and the Trustee
shall execute and deliver such other documents, as the Servicer may request, to enable the
Servicer to service and administer the Mortgage Loans and carry out its duties hereunder, in
each case in accordance with Accepted Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Servicer). If the Servicer or
the Trustee has been advised that it is likely that the laws of the state in which action is
to be taken prohibit such action if taken in the name of the Trustee or that the Trustee
would be adversely affected under the "doing business" or tax laws of such state if such
action is taken in its name, the Servicer shall join with the Trustee in the appointment of
a co-trustee pursuant to Section 9.11 hereof. In the performance of its duties hereunder,
the Servicer shall be an independent contractor and shall not, except in those instances
where it is taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements.
(a) When any Mortgaged Property is conveyed by a Mortgagor, the Servicer or subservicer, to
the extent it has knowledge of such conveyance, shall enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Primary Mortgage Insurance Policy. Notwithstanding
the foregoing, the Servicer is not required to exercise such rights with respect to a
Mortgage Loan if the Person to whom the related Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the terms and conditions contained in the Mortgage Note
and Mortgage related thereto and the consent of the Mortgagee under such Mortgage Note or
Mortgage is not otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the Servicer is prohibited by law from enforcing any such
due-on-sale clause, or if coverage under any Primary Mortgage Insurance Policy would be
adversely affected, or if nonenforcement is otherwise permitted hereunder, the Servicer is
authorized, subject to Section 3.06(b), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about to be conveyed,
pursuant to which such person becomes liable under the Mortgage Note and, unless prohibited
by applicable state law, the Mortgagor remains liable thereon, provided that the Mortgage
Loan shall continue to be covered (if so covered before the Servicer enters such agreement)
by the applicable Primary Mortgage Insurance Policy. The Servicer, subject to
Section 3.06(b), is also authorized with the prior approval of the insurers under any Primary
Mortgage Insurance Policy to enter into a substitution of liability agreement with such
Person, pursuant to which the original Mortgagor is released from liability and such Person
is substituted as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section by reason of
any transfer or assumption which the Servicer reasonably believes it is restricted by law
from preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to the extent set forth
in Section 3.06(a), in any case in which a Mortgaged Property is to be conveyed to a Person
by a Mortgagor, and such Person is to enter into an assumption or modification agreement or
supplement to the Mortgage Note or Mortgage which requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Servicer is authorized, subject to the requirements of
the sentence next following, to execute and deliver, on behalf of the Trustee, the
assumption agreement with the Person to whom the Mortgaged Property is to be conveyed and
such modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person; provided, however, that in connection
with any such assumption, no material term of the Mortgage Note may be changed. Upon
receipt of appropriate instructions from the Servicer in accordance with the foregoing, the
Trustee shall execute any necessary instruments for such assumption or substitution of
liability delivered to it by the Servicer and as directed in writing by the Servicer. Upon
the closing of the transactions contemplated by such documents, the Servicer shall cause the
originals or true and correct copies of the assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Note or Mortgage to be delivered to the
Trustee or the Custodian and deposited with the Mortgage File for such Mortgage Loan. Any
fee collected by the Servicer or such related subservicer for entering into an assumption or
substitution of liability agreement will be retained by the Servicer or such subservicer as
additional servicing compensation.
Section 3.07 Release of Mortgage Files. (a) Upon becoming aware of the payment in full of
any Mortgage Loan, or the receipt by the Servicer of a notification that payment in full has
been escrowed in a manner customary for such purposes for payment to Certificateholders on
the next Distribution Date, the Servicer will, (or if the Servicer does not, the Trustee
may), promptly furnish to the Custodian, on behalf of the Trustee, two copies of a
certification substantially in the form of Exhibit D hereto signed by a Servicing Officer or
in a mutually agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer (which certification shall include a statement to the
effect that all amounts received in connection with such payment that are required to be
deposited in the Custodial Account maintained by the Servicer pursuant to Section 4.01 have
been or will be so deposited) and shall request that the Custodian, on behalf of the
Trustee, deliver to the Servicer the related Mortgage File. Upon receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall promptly release
the related Mortgage File to the Servicer and the Trustee and Custodian shall have no
further responsibility with regard to such Mortgage File. Upon any such payment in full,
the Servicer is authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or assignment of
mortgage without recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered to the
Person or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the Custodial Account.
In the event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it otherwise prejudice
any right the Certificateholders or the Depositor may have under the Mortgage Loan
Documents, the Servicer, upon written demand by the Depositor or the Trustee, shall remit
within one Business Day the then outstanding principal balance of the related Mortgage Loan
by deposit thereof in the Custodial Account.
(b) From time to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, the Trustee shall execute such documents as shall be prepared and furnished to the
Trustee by the Servicer (in a form reasonably acceptable to the Trustee) and as are
necessary to the prosecution of any such proceedings. The Custodian, on behalf of the
Trustee, shall, upon the request of the Servicer, and delivery to the Custodian, on behalf
of the Trustee, of two copies of a request for release signed by a Servicing Officer
substantially in the form of Exhibit D (or in a mutually agreeable electronic format which
will, in lieu of a signature on its face, originate from a Servicing Officer), release the
related Mortgage File held in its possession or control to the Servicer. Such trust receipt
shall obligate the Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer no longer exists unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the Mortgage File shall be released by the Custodian,
on behalf of the Trustee or to the Servicer.
Section 3.08 Documents, Records and Funds in Possession of Servicer To Be Held for Trustee.
(a) The Servicer shall transmit to the Trustee or Custodian such documents and instruments
coming into the possession of the Servicer from time to time as are required by the terms
hereof, to be delivered to the Trustee or Custodian. Any funds received by the Servicer in
respect of any Mortgage Loan or which otherwise are collected by the Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be held for the benefit
of the Trustee and the Certificateholders subject to the Servicer's right to retain or
withdraw from the Custodial Account the Servicing Fee and other amounts as provided in this
Agreement. The Servicer shall provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon reasonable
request and during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the Office of Thrift Supervision, the FDIC
and the supervisory agents and examiners of such Office and Corporation or examiners of any
other federal or state banking or insurance regulatory authority if so required by
applicable regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in writing and
during normal business hours at the offices of the Servicer designated by it. In fulfilling
such a request the Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under the control of, the Servicer,
in respect of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, shall be held by the Servicer
for and on behalf of the Trustee and the Certificateholders and shall be and remain the sole
and exclusive property of the Trust; provided, however, that the Servicer shall be entitled
to setoff against, and deduct from, any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) The Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged Property is
located in an amount which is equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan or (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan, and (b) the percentage such that the proceeds
thereof shall be sufficient to prevent the Mortgagor and/or the Mortgagee from becoming a
co-insurer. If the Mortgaged Property is in an area identified in the Federal Register by
the Federal Emergency Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Servicer will cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the Federal
Insurance Administration with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (i) the outstanding principal balance of
the Mortgage Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan or (iii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. The Servicer shall also maintain on the REO
Property, fire and hazard insurance with extended coverage in an amount which is at least
equal to the maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided above. It is
understood and agreed that no other additional insurance need be required by the Servicer or
the Mortgagor or maintained on property acquired in respect of the Mortgage Loans, other
than pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guide or such applicable state or federal laws and
regulations as shall at any time be in force and as shall require such additional
insurance. All such policies shall be endorsed with standard mortgagee clauses with loss
payable to the Servicer and its successors and/or assigns and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount or material
change in coverage to the Servicer. The Servicer shall not interfere with the Mortgagor's
freedom of choice in selecting a insurance carrier or agent, provided, however, that the
Servicer shall not accept any such insurance policies from insurance companies unless such
companies currently reflect a General Policy Rating in Best's Key Rating Guide currently
acceptable to ▇▇▇▇▇▇ Mae and are licensed to do business in the state wherein the property
subject to the policy is located.
(b) If the Servicer shall obtain and maintain a blanket hazard insurance policy with extended
coverage insuring against hazard losses on all of the Mortgage Loans, it shall conclusively
be deemed to have satisfied its obligations as set forth in the first sentence of
Section 3.09(a), it being understood and agreed that such policy may contain a deductible
clause, in which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the first sentence of
Section 3.09(a) and there shall have been a loss which would have been covered by such
policy, deposit in the Custodial Account the amount not otherwise payable under the blanket
policy because of such deductible clause.
(c) Pursuant to Section 4.01, any amounts collected by the Servicer, under any insurance
policies (other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage) shall be deposited into the Custodial Account, subject to
withdrawal pursuant to Section 4.02. Any cost incurred by the Servicer in maintaining any
such insurance if the Mortgagor defaults in its obligation to do so shall be added to the
amount owing under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into account for
purposes of calculating the distributions to be made to Certificateholders and shall be
recoverable by the Servicer pursuant to Section 4.02.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Servicer shall prepare
and present on behalf of the Trustee and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement, compromise
or enforcement of the insured's claim) as shall be necessary to realize recovery under such
policies. Any proceeds disbursed to the Servicer in respect of such policies, bonds or
contracts shall be promptly deposited in the Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on the related
Mortgage Loan to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Servicer shall not take, or permit any subservicer to take, any action that would
result in noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of the Servicer or such subservicer, would have been covered
thereunder. The Servicer shall cause to be kept in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary mortgage insurance
applicable to each Mortgage Loan in accordance with the provisions of this Agreement. The
Servicer shall not, and shall not permit any subservicer to, cancel or refuse to renew any
such Primary Mortgage Insurance Policy that is in effect at the date of the initial issuance
of the Mortgage Note and is required to be kept in force hereunder except in accordance with
the provisions of this Agreement. Any such primary mortgage insurance policies shall be
issued by a Qualified Insurer.
(b) The Servicer agrees to present, or to cause each subservicer to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any Primary Mortgage
Insurance Policies and, in this regard, to take such reasonable action as shall be necessary
to permit recovery under any Primary Mortgage Insurance Policies respecting defaulted
Mortgage Loans. Pursuant to Section 4.01, any amounts collected by the Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.02.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and Documents.
The Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available) of any Primary Mortgage Insurance
Policies, or certificate of insurance if applicable, and any certificates of renewal as to
the foregoing as may be issued from time to time as contemplated by this Agreement. Until
all amounts distributable in respect of the Certificates have been distributed in full and
the Servicer otherwise has fulfilled its obligations under this Agreement, the Trustee (or
its Custodian, if any, as directed by the Trustee) shall also retain possession and custody
of each Mortgage File in accordance with and subject to the terms and conditions of this
Agreement. The Servicer shall promptly deliver or cause to be delivered to the Trustee (or
the Custodian, as directed by the Trustee), upon the execution or receipt thereof the
originals of any Primary Mortgage Insurance Policies, any certificates of renewal, and such
other documents or instruments that constitute portions of the Mortgage File that come into
the possession of the Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Servicer shall use its
reasonable efforts, consistent with the procedures that the Servicer would use in servicing
loans for its own account and the requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide, to foreclose upon or
otherwise comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to Section 4.01. The
Servicer shall use its reasonable efforts to realize upon defaulted Mortgage Loans in such
manner as will maximize the receipt of principal and interest by the Depositor, taking into
account, among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward the restoration of
such property unless it shall determine in its discretion (i) that such restoration will
increase the proceeds of liquidation of the related Mortgage Loan to the Depositor after
reimbursement to itself for such expenses, and (ii) that such expenses will be recoverable
by the Servicer through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 4.02. The Servicer shall be responsible for
all costs and expenses incurred by it in any such proceedings or functions as advances;
provided, however, that it shall be entitled to reimbursement therefor as provided in
Section 4.02. Notwithstanding anything to the contrary contained herein, in connection with
a foreclosure or acceptance of a deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, or if the Trustee otherwise requests an environmental inspection or
review of such Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector. Upon completion of the inspection, the Servicer shall promptly provide
the Depositor and the Trustee with a written report of the environmental inspection.
Section 3.14 Compensation for the Servicer. The Servicer will be entitled to the Servicing
Fee and all income and gain realized from any investment of funds in the Custodial Account,
pursuant to Article IV, for the performance of its activities hereunder. Servicing
compensation in the form of assumption fees, if any, late payment charges, as collected, if
any, or otherwise (but not including any Prepayment Charges) shall be retained by the
Servicer and shall not be deposited in the Custodial Account. The Servicer will be entitled
to retain, as additional compensation, any interest incurred in connection with a Principal
Prepayment in full or otherwise in excess of amounts required to be remitted to the
Distribution Account (such amounts together with the amounts specified in the first sentence
of this Section 3.14, the "Servicing Compensation") and any Excess Liquidation Proceeds. The
Servicer shall be required to pay all expenses incurred by it in connection with its
activities hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
Section 3.15 REO Property.
(a) In the event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee, or to
its nominee, on behalf of the related Certificateholders. The Servicer shall ensure that
the title to such REO Property references this Agreement and the Trustee's capacity
hereunder (and not in its individual capacity). The Servicer, however, shall not be
required to expend its own funds or incur other reimbursable charges in connection with any
foreclosure, or attempted foreclosure which is not completed, or towards the restoration of
any property unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Holders of Certificates of one
or more Classes after reimbursement to itself for such expenses or charges and (ii) that
such expenses or charges will be recoverable to it through Liquidation Proceeds, Insurance
Proceeds, or REO Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account pursuant to Section 4.02, whether or not such
expenses and charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Servicer pursuant to
this Section 3.15(a), the Servicer shall be entitled to reimbursement of such amounts
pursuant to Section 4.02. If the Servicer has knowledge that a Mortgaged Property which the
Servicer is contemplating acquiring in foreclosure or by deed in lieu of foreclosure is
located within a one (1) mile radius of any site listed in the Expenditure Plan for the
Hazardous Substance Clean Up Bond Act of 1984 or other site with environmental or hazardous
waste risks known to the Servicer, the Servicer will, prior to acquiring the Mortgaged
Property, consider such risks and only take action in accordance with its established
environmental review procedures.
The Servicer shall, either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate each REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account, and in the
same manner that similar property in the same locality as the REO Property is managed,
including in accordance with the REMIC Provisions and in a manner that does not result in a
tax on "net income from foreclosure property" (unless such result would maximize the Trust
Fund's after-tax return on such property) or cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code. Each
disposition of REO Property shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer deems to be in the best interest of the
Certificateholders. The Servicer shall deposit all funds collected and received in
connection with the operation of any REO Property in the Custodial Account pursuant to
Section 4.01.
Upon the occurrence of a Cash Liquidation or REO Disposition, following the deposit
in the Custodial Account of all Insurance Proceeds, Liquidation Proceeds and other payments
and recoveries referred to in the definition of "Cash Liquidation" or "REO Disposition," as
applicable, upon receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee or any Custodian, as the case may be, shall release to the
Servicer the related Mortgage File and the Trustee shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case without
recourse, as shall be necessary to vest in the Servicer or its designee, as the case may be,
the related Mortgage Loan, and thereafter such Mortgage Loan shall not be part of the Trust
Fund.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as an REO Property by
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be
issued to the Trustee or to its nominee on behalf of Certificateholders. Notwithstanding
any such acquisition of title and cancellation of the related Mortgage Loan, such REO
Property shall (except as otherwise expressly provided herein) be considered to be an
Outstanding Mortgage Loan held in the Trust Fund until such time as the REO Property shall
be sold. Consistent with the foregoing for purposes of all calculations hereunder so long
as such REO Property shall be considered to be an Outstanding Mortgage Loan it shall be
assumed that, notwithstanding that the indebtedness evidenced by the related Mortgage Note
shall have been discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to any previous
Curtailments and before any adjustment thereto by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period) remain in effect. To the
extent the net income received during any calendar month is in excess of the amount
attributable to amortizing principal and accrued interest at the related Mortgage Rate on
the related Mortgage Loan for such calendar month, such excess shall be considered to be a
Curtailment of the related Mortgage Loan.
(c) If the Trust Fund acquires any REO Property as aforesaid or otherwise in connection with
a default or imminent default on a Mortgage Loan, the Servicer on behalf of the Trust Fund
shall dispose of such REO Property within three full years after the taxable year of its
acquisition by the Trust Fund for purposes of Section 860G(a)(8) of the Code (or such
shorter period as may be necessary under applicable state (including any state in which such
property is located) law to maintain the status of any portion of the applicable REMIC as a
REMIC under applicable state law and avoid taxes resulting from such property failing to be
foreclosure property under applicable state law) or, at the expense of the Trust Fund,
request, more than 60 days before the day on which such grace period would otherwise expire,
an extension of such grace period unless the Servicer obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee and the Servicer, to the effect that the holding by the
Trust Fund of such REO Property subsequent to such period will not result in the imposition
of taxes on "prohibited transactions" as defined in Section 860F of the Code or cause the
applicable REMIC to fail to qualify as a REMIC (for federal (or any applicable State or
local) income tax purposes) at any time that any Certificates are outstanding, in which case
the Trust Fund may continue to hold such REO Property (subject to any conditions contained
in such Opinion of Counsel). The Servicer shall be entitled to be reimbursed from the
Custodial Account for any costs incurred in obtaining such Opinion of Counsel, as provided
in Section 4.02. Notwithstanding any other provision of this Agreement, no REO Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented) or
otherwise used by or on behalf of the Trust Fund in such a manner or pursuant to any terms
that would (i) cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or (ii) subject the Trust Fund to the
imposition of any federal income taxes on the income earned from such REO Property,
including any taxes imposed by reason of Section 860G(c) of the Code, unless the Servicer
has agreed to indemnify and hold harmless the Trust Fund with respect to the imposition of
any such taxes.
Section 3.16 Annual Officer's Certificate as to Compliance.
(a) The Servicer shall deliver to the Trustee, the Certificate Insurer and the Rating
Agencies on or before March 1 of each year, commencing on March 1, 2006, an Officer's
Certificate, certifying that with respect to the period ending December 31 of the prior
year: (i) such Servicing Officer has reviewed the activities of the Servicer during the
preceding calendar year or portion thereof and its performance under this Agreement, (ii) to
the best of such Servicing Officer's knowledge, based on such review, such Servicer has
performed and fulfilled its duties, responsibilities and obligations under this Agreement in
all material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each such
default known to such Servicing Officer and the nature and status thereof, (iii) nothing has
come to the attention of such Servicing Officer to lead such Servicing Officer to believe
that the Servicer has failed to perform any of its duties, responsibilities and obligations
under this Agreement in all material respects throughout such year, or, if there has been a
material default in the performance or fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and the nature and
status thereof.
(b) Copies of such statements shall be provided to any Certificateholder upon request, by the
Servicer or by the Trustee at the Servicer's expense if the Servicer failed to provide such
copies (unless (i) the Servicer shall have failed to provide the Trustee with such statement
or (ii) the Trustee shall be unaware of the Servicer's failure to provide such statement).
Section 3.17 Annual Independent Accountant's Servicing Report. The Servicer at its expense
shall cause a nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Certificate Insurer, the Rating Agencies and the
Depositor on or before March 1 of each year, commencing on March 1, 2006 to the effect that,
with respect to the most recently ended calendar year, such firm has examined certain
records and documents relating to the Servicer's performance of its servicing obligations
under this Agreement and pooling and servicing and trust agreements in material respects
similar to this Agreement and to each other and that, on the basis of such examination
conducted substantially in compliance with the audit program for mortgages serviced for
▇▇▇▇▇▇▇ Mac or the Uniform Single Attestation Program for Mortgage Bankers, such firm is of
the opinion that the Servicer's activities have been conducted in compliance with this
Agreement, or that such examination has disclosed no material items of noncompliance except
for (i) such exceptions as such firm believes to be immaterial, (ii) such other exceptions
as are set forth in such statement and (iii) such exceptions that the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages Serviced by
▇▇▇▇▇▇▇ Mac requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Servicer, or by the Trustee at the expense of the
Servicer if the Servicer shall fail to provide such copies. If such report discloses
exceptions that are material, the Servicer shall advise the Trustee whether such exceptions
have been or are susceptible of cure, and will take prompt action to do so.
Section 3.18 Reports Filed with Securities and Exchange Commission. Within 15 days after
each Distribution Date, the Trustee shall, in accordance with industry standards, file with
the Commission via the Electronic Data Gathering and Retrieval System ("▇▇▇▇▇"), a Form 8-K
(or other comparable form containing the same or comparable information or other information
mutually agreed upon) with a copy of the statement to the Certificateholders for such
Distribution Date as an exhibit thereto. Prior to January 30 of each year, the Trustee
shall, in accordance with industry standards and only if instructed by the Depositor, file a
Form 15 Suspension Notice with respect to the Trust Fund, if applicable. Prior to
(i) March 15, 2006 and (ii) unless and until a Form 15 Suspension Notice shall have been
filed, prior to March 15 of each year thereafter, the Servicer shall provide the Trustee
with a Servicer Certification, together with a copy of the annual independent accountant's
servicing report and annual statement of compliance required to be delivered by the Servicer
pursuant to Sections 3.16 and 3.17. Prior to (i) March 31, 2006, or such earlier filing
date as may be required by the Commission, and (ii) unless and until a Form 15 Suspension
Notice shall have been filed, March 31 of each year thereafter, or such earlier filing date
as may be required by the Commission, the Trustee shall prepare and file a Form 10-K, in
substance conforming to industry standards, with respect to the Trust. Such Form 10-K shall
be executed on behalf of the Depositor by the Servicer and shall include the Servicer
Certification and other documentation provided by the Servicer pursuant to the second
preceding sentence. The Depositor hereby grants to the Trustee a limited power of attorney
to execute each Form 8-K (or comparable form) and to file each Form 8-K and Form 10-K on
behalf of the Depositor. Such power of attorney shall continue until either the earlier of
(i) receipt by the Trustee from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust Fund. The Depositor agrees to promptly
furnish to the Trustee, from time to time upon request, such further information, reports
and financial statements within its control related to this Agreement and the Mortgage Loans
as the Trustee reasonably deems appropriate to prepare and file all necessary reports with
the Commission. The Trustee shall have no responsibility to file any items other than those
specified in this Section 3.18; provided, however, the Trustee will cooperate with the
Depositor in connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Fees and expenses incurred by the Trustee in connection with this
Section 3.18 shall not be reimbursable from the Trust Fund.
Section 3.19 UCC. The Depositor shall inform the Trustee in writing of any Uniform
Commercial Code financing statements that were filed on the Closing Date in connection with
the Trust with stamped recorded copies of such financing statements to be delivered to the
Trustee promptly upon receipt by the Depositor. The Trustee agrees to monitor and notify
the Depositor if any continuation statements for such Uniform Commercial Code financing
statements need to be filed. If directed by the Depositor in writing, the Trustee will file
any such continuation statements solely at the expense of the Depositor. The Depositor
shall file any financing statements or amendments thereto required by any change in the
Uniform Commercial Code.
Section 3.20 Optional Purchase of Defaulted Mortgage Loans.
(a) With respect to any Mortgage Loan which as of the first day of a Fiscal Quarter is
delinquent in payment by 90 days or more or is an REO Property, the Company shall have the
right to purchase such Mortgage Loan from the Trust at a price equal to the Repurchase
Price; provided however (i) that such Mortgage Loan is still 90 days or more delinquent or
is an REO Property as of the date of such purchase and (ii) this purchase option, if not
theretofore exercised, shall terminate on the date prior to the last day of the related
Fiscal Quarter. This purchase option, if not exercised, shall not be thereafter reinstated
unless the delinquency is cured and the Mortgage Loan thereafter again becomes 90 days or
more delinquent or becomes an REO Property, in which case the option shall again become
exercisable as of the first day of the related Fiscal Quarter.
(b) If at any time the Company deposits, or remits to the Servicer (to the extent it is not
the Servicer) for deposit, in the Custodial Account the amount of the Repurchase Price for a
Mortgage Loan and the Company provides to the Trustee a certification signed by a Servicing
Officer stating that the amount of such payment has been deposited in the Custodial Account,
then the Trustee shall execute the assignment of such Mortgage Loan to the Company at the
request of the Company without recourse, representation or warranty and the Company shall
succeed to all of the Trustee's right, title and interest in and to such Mortgage Loan, and
all security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Company will thereupon own such Mortgage, and all such
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
ARTICLE IV
Accounts
Section 4.01 Custodial Account. (a) The Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial Accounts
held in trust for the Certificateholders. Each Custodial Account shall be an Eligible
Account. The Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other series, and
the other accounts of the Servicer.
Within two Business Days of receipt, except as otherwise specifically provided
herein, the Servicer shall deposit or cause to be deposited the following payments and
collections remitted by subservicers or received by it in respect of the Mortgage Loans
subsequent to the Cut-off Date (other than in respect of principal and interest due on such
Mortgage Loans on or before the Cut-off Date) and the following amounts required to be
deposited hereunder:
(i) Scheduled Payments on the Mortgage Loans received or any related portion thereof advanced
by the Servicer which were due during or before the related Due Period, net of the amount
thereof comprising the Servicing Fee;
(ii) Full Principal Prepayments and any Liquidation Proceeds received by the Servicer with
respect to the Mortgage Loans in the related Prepayment Period (or, in the case of
Subsequent Recoveries, during the related Due Period), with interest to the date of
prepayment or liquidation, net of the amount thereof comprising the Servicing Fee;
(iii) Partial Principal Prepayments received by the Servicer for the Mortgage Loans in the
related Prepayment Period;
(iv) Any Monthly Advance and any Compensating Interest Payments;
(v) Any Insurance Proceeds or Net Liquidation Proceeds received by or on behalf of the
Servicer;
(vi) The Repurchase Price with respect to any Mortgage Loans purchased by the Seller pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 hereof, any amounts which
are to be treated pursuant to Section 2.04 of this Agreement as the payment of a Repurchase
Price in connection with the tender of a Substitute Mortgage Loan by the Seller, the
Repurchase Price with respect to any Mortgage Loans purchased pursuant to Section 3.20, and
all proceeds of any Mortgage Loans or property acquired with respect thereto repurchased by
the Depositor or its designee pursuant to Section 10.01;
(vii) Any amounts required to be deposited with respect to losses on investments of deposits
in an Account;
(viii) Any amounts received by the Servicer in connection with any Prepayment
Charge on the Prepayment Charge Loans; and
(ix) Any other amounts received by or on behalf of the Servicer and required to be deposited
in the Custodial Account pursuant to this Agreement.
(b) All amounts deposited to the Custodial Account shall be held by the Servicer in the name
of the Trustee in trust for the benefit of the Certificateholders and the Certificate
Insurer in accordance with the terms and provisions of this Agreement. The requirements for
crediting the Custodial Account or the Distribution Account shall be exclusive, it being
understood and agreed that, without limiting the generality of the foregoing, payments in
the nature of (i) late payment charges or assumption, tax service, statement account or
payoff, substitution, satisfaction, release and other like fees and charges and (ii) the
items enumerated in Sections 4.04(a)(i) through (iv) and (vi) through (xi) with respect to
the Trustee and the Servicer, need not be credited by the Servicer to the Distribution
Account or the Custodial Account, as applicable. Amounts received by the Servicer in
connection with Prepayment Charges on the Prepayment Charge Loans shall be remitted by the
Servicer to the Trustee and deposited by the Trustee into the Class XP Reserve Account upon
receipt thereof. In the event that the Servicer shall deposit or cause to be deposited to
the Distribution Account any amount not required to be credited thereto, the Trustee, upon
receipt of a written request therefor signed by a Servicing Officer of the Servicer, shall
promptly transfer such amount to the Servicer, any provision herein to the contrary
notwithstanding.
(c) The amount at any time credited to the Custodial Account may be invested, in the name of
the Trustee, or its nominee, for the benefit of the Certificateholders, in Permitted
Investments as directed by the Servicer. All Permitted Investments shall mature or be
subject to redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on amounts on
deposit in the Custodial Account from time to time shall be for the account of the
Servicer. The Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Custodial Account. The risk of
loss of moneys required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the Servicer. The Servicer shall deposit
the amount of any such loss in the Custodial Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to the
Distribution Date on which the moneys so invested are required to be distributed to the
Certificateholders.
Section 4.02 Permitted Withdrawals and Transfers from the Custodial Account. (a) The
Servicer will, from time to time on demand of the Trustee, make or cause to be made such
withdrawals or transfers from the Custodial Account as the Servicer has designated for such
transfer or withdrawal pursuant to this Agreement. The Servicer may clear and terminate the
Custodial Account pursuant to Section 10.01 and remove amounts from time to time deposited
in error.
(b) On an ongoing basis, the Servicer shall withdraw from the Custodial Account (i) any
expenses recoverable by the Trustee, the Servicer or the Custodian pursuant to Sections
3.03, 7.04 and 9.05 and (ii) any amounts payable to the Servicer as set forth in
Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the Servicer shall
deposit in the Distribution Account (or remit to the Trustee for deposit therein) any
Monthly Advances required to be made by the Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account Deposit Date, the
Servicer will transfer all Available Funds on deposit in the Custodial Account with respect
to the related Distribution Date to the Trustee for deposit in the Distribution Account.
(e) With respect to any remittance received by the Trustee after the Distribution Account
Deposit Date on which such payment was due, the Servicer shall pay to the Trustee interest
on any such late payment at an annual rate equal to the Prime Rate, adjusted as of the date
of each change of the Prime Rate, plus two percentage points, but in no event greater than
the maximum amount permitted by applicable law. Such interest shall be remitted to the
Trustee by the Servicer on the date such late payment is made and shall cover the period
commencing with such Distribution Account Deposit Date and ending with the Business Day on
which such payment is made, both inclusive. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of any Event of
Default by the Servicer.
Section 4.03 Distribution Account. (a) The Trustee shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders and the Certificate Insurer, the
Distribution Account as a segregated trust account or accounts. The Trustee shall deposit
into the Distribution Account all amounts in respect to Available Funds received by it from
the Servicer.
(b) All amounts deposited to the Distribution Account shall be held by the Trustee in trust
for the benefit of the Certificateholders and the Certificate Insurer in accordance with the
terms and provisions of this Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust Fund segregated on
the books of the Trustee and held by the Trustee in trust in its Corporate Trust Office, and
the Distribution Account and the funds deposited therein shall not be subject to, and shall
be protected from, all claims, liens, and encumbrances of any creditors or depositors of the
Trustee (whether made directly, or indirectly through a liquidator or receiver of the
Trustee). The Distribution Account shall be an Eligible Account. The amount at any time
credited to the Distribution Account may be invested in the name of the Trustee in Permitted
Investments selected by the Trustee. All Permitted Investments shall mature or be subject
to redemption or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Trustee or, if such
obligor is any other Person, the Business Day preceding such Distribution Date. All
investment earnings on amounts on deposit in the Distribution Account or benefit from funds
uninvested therein from time to time shall be for the account of the Trustee. The Trustee
shall be permitted to withdraw or receive distribution of any and all investment earnings
from the Distribution Account on each Distribution Date. If there is any loss on a
Permitted Investment, the Trustee shall deposit the amount of such loss for deposit in the
Distribution Account. With respect to the Distribution Account and the funds deposited
therein, the Trustee shall take such action as may be necessary to ensure that the
Certificateholders shall be entitled to the priorities afforded to such a trust account (in
addition to a claim against the estate of the Trustee) as provided by 12 U.S.C. § 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable comparable
state statute applicable to state chartered banking corporations.
Section 4.04 Permitted Withdrawals and Transfers from the Distribution Account. (a) The
Trustee will, from time to time on demand of the Servicer, make or cause to be made such
withdrawals or transfers from the Distribution Account as the Servicer has designated for
such transfer or withdrawal pursuant to this Agreement or as the Trustee deems necessary for
the following purposes (limited in the case of amounts due the Servicer to those not
withdrawn from the Custodial Account in accordance with the terms of this Agreement):
(i) to reimburse itself or the Servicer for any Monthly Advance of its own funds, the right
of the Trustee or the Servicer to reimbursement pursuant to this subclause (i) being limited
to amounts received on a particular Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan with respect to
which such Monthly Advance was made;
(ii) to reimburse the Servicer from Insurance Proceeds or Liquidation Proceeds relating to a
particular Mortgage Loan for amounts expended by the Servicer in good faith in connection
with the restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Servicer from Insurance Proceeds relating to a particular Mortgage
Loan for insured expenses incurred with respect to such Mortgage Loan and to reimburse the
Servicer from Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan; provided that the Servicer shall not be
entitled to reimbursement for Liquidation Expenses with respect to a Mortgage Loan to the
extent that (i) any amounts with respect to such Mortgage Loan were paid as Excess
Liquidation Proceeds pursuant to clause (x) of this Section 4.04(a) to the Servicer; and
(ii) such Liquidation Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to pay the Servicer, from Liquidation Proceeds or Insurance Proceeds received in
connection with the liquidation of any Mortgage Loan, the amount which the Servicer would
have been entitled to receive under clause (ix) of this Section 4.04(a) as servicing
compensation on account of each defaulted scheduled payment on such Mortgage Loan if paid in
a timely manner by the related Mortgagor;
(v) to pay the Servicer from the Repurchase Price for any Mortgage Loan, the amount which the
Servicer would have been entitled to receive under clause (ix) of this Section 4.04(a) as
servicing compensation;
(vi) to reimburse the Servicer for advances of funds (other than Monthly Advances) made with
respect to the Mortgage Loans, and the right to reimbursement pursuant to this clause being
limited to amounts received on the related Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
recoveries of the payments for which such advances were made;
(vii) to reimburse the Trustee or the Servicer for any Nonrecoverable Advance that has not
been reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Servicer as set forth in Section 3.14;
(ix) to reimburse the Servicer for expenses, costs and liabilities incurred by and
reimbursable to it pursuant to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Servicer, as additional servicing compensation, any Excess Liquidation
Proceeds;
(xi) to reimburse the Trustee or the Custodian for expenses, costs and liabilities incurred
by or reimbursable to it pursuant to this Agreement;
(xii) to pay the Certificate Insurer its Aggregate Premium Amount;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to Section 10.01.
(b) The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage
Loan basis and shall provide a copy to the Trustee, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to clauses (i) through (vi) and (vii)
or with respect to any such amounts which would have been covered by such clauses had the
amounts not been retained by the Servicer without being deposited in the Distribution
Account under Section 4.01(b). Reimbursements made pursuant to clauses (vii), (ix) and (xi)
will be allocated between the Loan Groups pro rata based on the aggregate Scheduled
Principal Balances of the Mortgage Loans in each Loan Group.
(c) On each Distribution Date, the Trustee shall distribute the Available Funds to the extent
on deposit in the Distribution Account for each Loan Group to the Holders of the related
Certificates in accordance with Section 6.01.
Section 4.05 Class A Reserve Fund, Class I-A-2 Reserve Fund and Subordinate Reserve Fund.
(a) No later than the Closing Date, the Paying Agent shall
establish and maintain a segregated trust account or sub-account of a trust account, which
shall be titled "Class A Reserve Fund, ▇▇▇▇▇ Fargo Bank, National Association, as trustee
for the benefit of holders of Structured Asset Mortgage Investments II Inc., GreenPoint
Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5" (the
"Class A Reserve Fund"). The Class A Reserve Fund shall be an Eligible Account or a
sub-account of an Eligible Account. On the Closing Date, the Depositor shall pay to the
Paying Agent an amount equal to $50,000.00 which shall be deposited by the Paying Agent into
the Class A Reserve Fund. Pursuant to Section 6.01, on the initial Distribution Date,
amounts on deposit in the Class A Reserve Fund will be withdrawn from the Class A Reserve
Fund and deposited into the Distribution Account for payment to the Class I-A-1, Class II-A
(including any Components thereof) and Class III-A Certificates to the extent that Accrued
Certificate Interest on such Classes of Certificates is reduced by application of the
related Net Rate Cap on such initial Distribution Date. The Class A Reserve Fund will then
be entitled to be replenished on each future Distribution Date from amounts otherwise
payable as interest on (i) the Class I-X-1 Certificates, in the case of withdrawals from the
Class A Reserve Fund used to pay interest on the Class I-A-1 Certificates on the initial
Distribution Date, (ii) the Class II-X Certificates, in the case of withdrawals from the
Class A Reserve Fund used to pay interest on the Class II-A Certificates (including any
Components thereof) on the initial Distribution Date, (iii) the Class IV-X-1 Certificates,
in the case of withdrawals from the Class A Reserve Fund used to pay interest on the Class
IV-A-1 Certificates on the initial Distribution Date or (iv) the Class IV-X-2 Certificates,
in the case of withdrawals from the Class A Reserve Fund used to pay interest on the Class
IV-A-2 Certificates on the initial Distribution Date, until the Class A Reserve Fund has
been replenished to the amount deposited in such account as of the Closing Date. Once the
Class A Reserve Fund has been replenished in full, all amounts in the Class A Reserve Fund
will be distributed to the Depositor or its designee on the immediately following
Distribution Date; and following such withdrawal the Class A Reserve Fund will be closed.
(b) The Paying Agent will invest funds deposited in the Class A Reserve Fund as
directed by the Depositor or its designee in writing in Permitted Investments with a
maturity date (i) no later than the Business Day immediately preceding the date on which
such funds are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Paying Agent or an Affiliate of the Paying Agent is the obligor for
the Permitted Investment, or (ii) no later than the date on which such funds are required to
be withdrawn from such account or sub account of a trust account pursuant to this Agreement,
if the Paying Agent or an affiliate of the Paying Agent is the obligor for the Permitted
Investment (or, if no written direction is received by the Paying Agent from the Depositor,
then funds in such account shall remain uninvested). For federal income tax purposes, the
Depositor shall be the owner of the Class A Reserve Fund and shall report all items of
income, deduction, gain or loss arising therefrom. At no time will the Class A Reserve Fund
be an asset of any REMIC created hereunder. All income and gain realized from investment of
funds deposited in the Class A Reserve Fund, which investment shall be made solely upon the
written direction of the Depositor, shall be for the sole and exclusive benefit of the
Depositor and shall be remitted by the Paying Agent to the Depositor within one Business Day
from the closing of the Class A Reserve Fund. The Depositor shall deposit in the Class A
Reserve Fund the amount of any net loss incurred in respect of any such Permitted Investment
immediately upon realization of such loss.
(c) No later than the Closing Date, the Paying Agent shall establish and maintain
a segregated trust account or sub-account of a trust account, which shall be titled "Class
I-A-2 Reserve Fund, ▇▇▇▇▇ Fargo Bank, National Association, as trustee for the benefit of
holders of Structured Asset Mortgage Investments II Inc., GreenPoint Mortgage Funding Trust
2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5" (the "Class I-A-2 Reserve
Fund"). The Class I-A-2 Reserve Fund shall be an Eligible Account or a sub-account of an
Eligible Account. On the Closing Date, the Depositor shall pay to the Paying Agent an amount
equal to $225,000.00 which shall be deposited by the Paying Agent into the Class I-A-2
Reserve Fund. Pursuant to Section 6.01, for each of the first three Distribution Dates,
amounts on deposit in the Class I-A-2 Reserve Fund will be withdrawn from the Class I-A-2
Reserve Fund, to the extent available, and deposited into the Distribution Account for
payment to the Class I-A-2 Certificates to the extent that Accrued Certificate Interest on
such Class of Certificates is reduced by application of the related Net Rate Cap on such
Distribution Dates. The Class I-A-2 Reserve Fund will not be entitled to be replenished and
will be closed when the amounts on deposit have been reduced to zero. On the third
Distribution Date, any remaining amounts in the Class I-A-2 Reserve Fund will be distributed
to the Depositor or its designee, and following such withdrawal the Class I-A-2 Reserve Fund
will be closed.
(d) The Paying Agent will invest funds deposited in the Class I-A-2 Reserve Fund
as directed by the Depositor or its designee in writing in Permitted Investments with a
maturity date (i) no later than the Business Day immediately preceding the date on which
such funds are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Paying Agent or an Affiliate of the Paying Agent is the obligor for
the Permitted Investment, or (ii) no later than the date on which such funds are required to
be withdrawn from such account or sub account of a trust account pursuant to this Agreement,
if the Paying Agent or an affiliate of the Paying Agent is the obligor for the Permitted
Investment (or, if no written direction is received by the Paying Agent from the Depositor,
then funds in such account shall remain uninvested). For federal income tax purposes, the
Depositor shall be the owner of the Class I-A-2 Reserve Fund and shall report all items of
income, deduction, gain or loss arising therefrom. At no time will the Class I-A-2 Reserve
Fund be an asset of any REMIC created hereunder. All income and gain realized from
investment of funds deposited in the Class I-A-2 Reserve Fund, which investment shall be
made solely upon the written direction of the Depositor, shall be for the sole and exclusive
benefit of the Depositor and shall be remitted by the Paying Agent to the Depositor within
one Business Day from the closing of the Class I-A-2 Reserve Fund. The Depositor shall
deposit in the Class I-A-2 Reserve Fund the amount of any net loss incurred in respect of
any such Permitted Investment immediately upon realization of such loss.
(e) No later than the Closing Date, the Paying Agent shall establish and maintain
a segregated trust account or sub-account of a trust account, which shall be titled
"Subordinate Reserve Fund, ▇▇▇▇▇ Fargo Bank, National Association, as trustee for the benefit
of holders of Structured Asset Mortgage Investments II Inc., GreenPoint Mortgage Funding
Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5" (the "Subordinate
Reserve Fund"). The Subordinate Reserve Fund shall be an Eligible Account or a sub-account
of an Eligible Account. On the Closing Date, the Depositor shall pay to the Paying Agent an
amount equal to $50,000.00 which shall be deposited by the Paying Agent into the Subordinate
Reserve Fund. Pursuant to Section 6.01, on the initial Distribution Date, amounts on
deposit in the Subordinate Reserve Fund will be withdrawn from the Subordinate Reserve Fund
and deposited into the Distribution Account for payment to the Class M, Class B-1, Class B-2
and Class B-3 Certificates to the extent that Accrued Certificate Interest on such Classes
of Certificates is reduced by application of the related Net Rate Cap on such initial
Distribution Date. The Subordinate Reserve Fund will then be entitled to be replenished on
each future Distribution Date from amounts otherwise payable as interest on the Class M-X
Certificates. Once the Subordinate Reserve Fund has been replenished in full, all amounts
in the Subordinate Reserve Fund will be distributed to the Depositor or its designee on the
immediately following Distribution Date; and following such withdrawal the Subordinate
Reserve Fund will be closed.
(f) The Paying Agent will invest funds deposited in the Subordinate Reserve Fund
as directed by the Depositor or its designee in writing in Permitted Investments with a
maturity date (i) no later than the Business Day immediately preceding the date on which
such funds are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Paying Agent or an Affiliate of the Paying Agent is the obligor for
the Permitted Investment, or (ii) no later than the date on which such funds are required to
be withdrawn from such account or sub account of a trust account pursuant to this Agreement,
if the Paying Agent or an affiliate of the Paying Agent is the obligor for the Permitted
Investment (or, if no written direction is received by the Paying Agent from the Depositor,
then funds in such account shall remain uninvested). For federal income tax purposes, the
Depositor shall be the owner of the Subordinate Reserve Fund and shall report all items of
income, deduction, gain or loss arising therefrom. At no time will the Subordinate Reserve
Fund be an asset of any REMIC created hereunder. All income and gain realized from
investment of funds deposited in the Subordinate Reserve Fund, which investment shall be
made solely upon the written direction of the Depositor, shall be for the sole and exclusive
benefit of the Depositor and shall be remitted by the Paying Agent to the Depositor within
one Business Day from the closing of the Subordinate Reserve Fund. The Depositor shall
deposit in the Subordinate Reserve Fund the amount of any net loss incurred in respect of
any such Permitted Investment immediately upon realization of such loss.
Section 4.06 Statements to the Trustee
The Servicer shall furnish to the Trustee an individual Mortgage Loan
accounting report (a "Report"), as of the last Business Day of each month, in the Servicer's
assigned loan number order to document Mortgage Loan payment activity on an individual
Mortgage Loan basis. With respect to each month, such Report shall be received by the
Trustee no later than the 10th calendar day of the month of the related Distribution Date
(or November 10, 2005, in the case of the initial Report) a report in an Excel (or
compatible) electronic format (that can be downloaded into a Sybase database), in such
format as may be mutually agreed upon by both the Trustee and the Servicer, and in hard
copy, which Report shall contain the following:
(i) with respect to each Monthly Payment received or advanced during the
related Due Period, the amount of such remittance allocable to interest and to principal;
the amount of Principal Prepayments and prepayment penalties received during the related
Prepayment Period;
(ii) the amount of Servicing Compensation received by the Servicer during
the prior Due Period;
(iii) the aggregate Scheduled Principal Balance of the Mortgage Loans;
(iv) the number and aggregate outstanding principal balances of Mortgage
Loans (a) delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more; (b) as to
which foreclosure has commenced; and (c) as to which REO Property has been acquired; and
(v) such other data as may reasonably be required by the Trustee in order
to make distributions to the Certificateholders on such Distribution Date.
The Servicer shall also provide with each such Report a trial balance, sorted
in the Trustee's assigned loan number order, and such other loan level information as
described on Exhibits K and L, in electronic tape form.
The Servicer shall prepare and file any and all information statements or
other filings required to be delivered to any governmental taxing authority or to the
Trustee pursuant to any applicable law with respect to the Mortgage Loans and the
transactions contemplated hereby. In addition, the Servicer shall provide the Trustee with
such information concerning the Mortgage Loans as is necessary for the Trustee to prepare
the Trust's income tax returns as the Trustee may reasonably request from time to time.
Section 4.09 Class XP Reserve Account. (a) The Paying Agent shall establish and
maintain with itself a separate, segregated trust account, which shall be an Eligible
Account, titled "Reserve Account, ▇▇▇▇▇ Fargo Bank, National Association, as Trustee for the
benefit of holders of Structured Asset Mortgage Investments II Inc., GreenPoint Mortgage
Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5, Class XP".
Funds on deposit in the Class XP Reserve Account shall be held in trust by the Trustee for
the holder of the Class XP Certificates. The Class XP Reserve Account will not represent an
interest in any REMIC.
(b) Any amount on deposit in the Class XP Reserve Account shall be held
uninvested. On the Business Day prior to each Distribution Date, the Trustee shall withdraw
the amount then on deposit in the Class XP Reserve Account and deposit such amount into the
Distribution Account to be distributed to the Holders of the Class XP Certificates in
accordance with Section 6.01(f). In addition, on the earlier of (x) the Business Day prior
to the Distribution Date on which all the assets of the Trust Fund are repurchased as
described in Section 10.01(a), and (y) the Business Day prior to the Distribution Date
occurring in November 2011, the Trustee shall withdraw the amount on deposit in the Class XP
Reserve Account and deposit such amount into the Distribution Account and pay such amount to
the Class XP Certificates in accordance with Section 6.01(f), and following such withdrawal
the Class XP Reserve Account shall be closed.
Section 4.07 [Reserved.]
Section 4.08 [Reserved.]
Section 4.09 [Reserved.]
Section 4.10 Certificate Insurance Policy.
(a) On or prior to the Closing Date, the Paying Agent shall cause to be
established and maintained the Policy Account, into which amounts received by the Trustee
pursuant to the Certificate Insurance Policy shall be deposited for the benefit of the Class
II-A-2 Certificates and the Class III-A-2 Certificates. The Policy Account may be a
sub-account of the Distribution Account. Amounts on deposit in the Policy Account shall not
be invested and shall not be held in an interest-bearing account.
(b) As soon as possible, and in no event later than 12:00 noon New York time on
the second Business Day immediately preceding any Distribution Date, the Trustee shall
furnish the Certificate Insurer and the Servicer with a completed Notice in the form set
forth as Exhibit A to the Endorsement to the Certificate Insurance Policy in the event that
the related Available Funds (other than any amounts in respect of Insured Amounts) are
insufficient to pay the Accrued Certificate Interest (net of any Net Interest Shortfalls,
Carryover Shortfall Amounts or Net Deferred Interest) with respect to the Class II-A-2
Certificateholders and the Class III-A-2 Certificateholders, as applicable, on such
Distribution Date; provided, however, that if such Distribution Date is the Final
Distribution Date, the Notice shall also include the outstanding Current Principal Amounts
of the Class II-A-2 Certificates and the Class III-A-2 Certificates, after giving effect to
all payments of principal on the Class II-A-2 Certificates and the Class III-A-2
Certificates on such Final Distribution Date, other than pursuant to the Certificate
Insurance Policy. The Notice shall specify the amount of Insured Amounts and shall
constitute a claim for an Insured Amount pursuant to the Certificate Insurance Policy.
(c) Upon receipt of an Insured Amount in accordance with the Certificate Insurance
Policy from the Certificate Insurer on behalf of the Holders of the Insured Certificates,
the Trustee shall deposit such Insured Amount into the Policy Account. On or prior to each
Distribution Date, the Trustee shall transfer amounts on deposit in the Policy Account to
the Distribution Account and shall distribute such Insured Amounts pursuant to Section
6.01.
The Paying Agent shall include on each Distribution Date any Insured Amounts received
by it from or on behalf of the Certificate Insurer for such Distribution Date (i) in the
amount distributed to the Holders of the Insured Certificates pursuant to Section 6.01(B)
and (ii) in the amount deemed to have been distributed to the Class II-A-2 and Class III-A-2
regular interests and deposited for their benefit into the Distribution Account. If on any
Distribution Date the Trustee determines that the Certificate Insurer has paid more under
the Certificate Insurance Policy than is required by the terms thereof, the Trustee shall
promptly return any excess to the Certificate Insurer.
(d) (i) The Trustee shall receive as attorney-in-fact of the Holders of the
Insured Certificates any Insured Amount delivered to it by the Certificate Insurer for
payment to such Holders and (ii) the Paying Agent shall distribute such Insured Amount to
such Holders as set forth in Section 6.01. Insured Amounts disbursed by the Paying Agent
from proceeds of the Certificate Insurance Policy shall not be considered payment by the
Trust Fund with respect to the Insured Certificates, nor shall such disbursement of Insured
Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and
the Certificate Insurer shall become owner of such amounts to the extent covered by such
Insured Amounts as the deemed assignee of such Holders. The Trustee hereby agrees on behalf
of the Holders of the Insured Certificates (and each such Holder, by its acceptance of its
Insured Certificates, hereby agrees) for the benefit of the Certificate Insurer that, to the
extent the Certificate Insurer pays any Insured Amount, either directly or indirectly (as by
paying through the Trustee), to the Holder of a Insured Certificate, the Certificate Insurer
will be entitled to be subrogated to any rights of such Holder to receive the amounts for
which such Insured Amount was paid, to the extent of such payment, and will be entitled to
receive the Reimbursement Amount as set forth in Section 6.01.
(e) At the end of the Term of the Certificate Insurance Policy (as defined in the
Certificate Insurance Policy), the Trustee shall return the Certificate Insurance Policy to
the Certificate Insurer for cancellation.
(f) Upon its becoming aware of the occurrence of an Event of Default, the Trustee
shall promptly notify the Certificate Insurer of such Event of Default.
(g) The Trustee shall promptly notify the Certificate Insurer of either of the
following as to which it has actual knowledge: (A) the commencement of any proceeding by or
against the Depositor commenced under the United States bankruptcy code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding") and (B) the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer (a "Preference Claim") of any
distribution made with respect to the Class II-A-2 Certificates and the Class III-A-2
Certificates as to which it has actual knowledge. Each Holder of a Class II-A-2 Certificate
or the Class III-A-2 Certificate, by its purchase of Class II-A-2 Certificates and the Class
III-A-2 Certificates, and the Trustee hereby agrees that the Certificate Insurer (so long as
no Certificate Insurer Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such Preference
Claim, including, without limitation, (i) the direction of any appeal of any order relating
to any Preference Claim and (ii) the posting of any surety, supersedes or performance bond
pending any such appeal. In addition and without limitation of the foregoing, the
Certificate Insurer shall be subrogated to the rights of the Trustee and each Holder of a
Class II-A-2 Certificate or the Class III-A-2 Certificate in the conduct of any Preference
Claim, including, without limitation, all rights of any party to an adversary proceeding
action with respect to any court order issued in connection with any such Preference Claim.
(h) The Servicer shall designate a Certificate Insurer Contact Person who shall be
available to the Certificate Insurer to provide reasonable access to information regarding
the Mortgage Loans.
(i) The Trustee shall send to the Certificate Insurer the reports prepared
pursuant to Sections 3.16 and 3.18 and the statements prepared pursuant to Section 4.06, as
well as any other statements or communications sent to Holders of the Class II-A-2
Certificates and the Class III-A-2 Certificates, in each case at the same time such reports,
statements and communications are otherwise sent.
(j) With respect to this Section 4.10, the terms "Receipt" and "Received" shall
mean actual delivery to the Certificate Insurer, if any, prior to 12:00 p.m., New York time,
on a Business Day; delivery either on a day that is not a Business Day or after 12:00 p.m.,
New York time, shall be deemed to be Receipt on the next succeeding Business Day. If any
notice or certificate given under the Certificate Insurance Policy by the Trustee is not in
proper form or is not properly completed, executed or delivered, it shall be deemed not to
have been Received. The Certificate Insurer shall promptly so advise the Trustee and the
Trustee may submit an amended notice.
(l) All references herein to the ratings assigned to the Class II-A-2 Certificates
and the Class III-A-2 Certificates and to the interests of any Certificateholders shall be
without regard to the Certificate Insurance Policy.
ARTICLE V
Certificates
Section 5.01 Certificates. (a) The Depository, the Depositor and the Trustee have entered
into a Depository Agreement dated as of the Closing Date (the "Depository Agreement").
Except for the Residual Certificates, the Private Certificates and the Individual
Certificates and as provided in Section 5.01(b), the Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all times: (i) registration
of such Certificates may not be transferred by the Trustee except to a successor to the
Depository; (ii) ownership and transfers of registration of such Certificates on the books
of the Depository shall be governed by applicable rules established by the Depository;
(iii) the Depository may collect its usual and customary fees, charges and expenses from its
Depository Participants; (iv) the Trustee shall deal with the Depository as representative
of such Certificate Owners of the respective Class of Certificates for purposes of
exercising the rights of Certificateholders under this Agreement, and requests and
directions for and votes of such representative shall not be deemed to be inconsistent if
they are made with respect to different Certificate Owners; and (v) the Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants.
The Residual Certificates and the Private Certificates are initially Physical
Certificates. If at any time the Holders of all of the Certificates of one or more such
Classes request that the Trustee cause such Class to become Global Certificates, the Trustee
and the Depositor will take such action as may be reasonably required to cause the
Depository to accept such Class or Classes for trading if it may legally be so traded.
All transfers by Certificate Owners of such respective Classes of Book-Entry
Certificates and any Global Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such Certificate
Owners. Each Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository and (B) the
Depositor is unable to locate a qualified successor within 30 days or (ii) the Depositor at
its option advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall request that the Depository notify all Certificate
Owners of the occurrence of any such event and of the availability of definitive, fully
registered Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the definitive Certificates.
In addition, if an Event of Default has occurred and is continuing, each Certificate
Owner materially adversely affected thereby may at its option request a definitive
Certificate evidencing such Certificate Owner's interest in the related Class of
Certificates. In order to make such request, such Certificate Owner shall, subject to the
rules and procedures of the Depository, provide the Depository or the related Depository
Participant with directions for the Trustee to exchange or cause the exchange of the
Certificate Owner's interest in such Class of Certificates for an equivalent interest in
fully registered definitive form. Upon receipt by the Trustee of instructions from the
Depository directing the Trustee to effect such exchange (such instructions to contain
information regarding the Class of Certificates and the Current Principal Amount being
exchanged, the Depository Participant account to be debited with the decrease, the
registered holder of and delivery instructions for the definitive Certificate, and any other
information reasonably required by the Trustee), (i) the Trustee shall instruct the
Depository to reduce the related Depository Participant's account by the aggregate Current
Principal Amount of the definitive Certificate, (ii) the Trustee shall execute and deliver,
in accordance with the registration and delivery instructions provided by the Depository, a
Definitive Certificate evidencing such Certificate Owner's interest in such Class of
Certificates and (iii) the Trustee shall execute a new Book-Entry Certificate reflecting the
reduction in the aggregate Current Principal Amount of such Class of Certificates by the
amount of the definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in the delivery
of any instructions required pursuant to this Section 5.01(b) and may conclusively rely on,
and shall be protected in relying on, such instructions.
(c) (i) As provided herein, the REMIC Administrator will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such segregated
pool of assets will be designated as "REMIC I." Component I of the Class R Certificates will
represent the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, Uncertificated REMIC I Pass-Through Rate and initial
Uncertificated Principal Balance for each of the "regular interests" in REMIC I (the
"REMIC I Regular Interests") and the designation and initial principal amount of the Class R
Certificates allocable to Component I of the Class R Certificates. None of the REMIC I
Regular Interests will be certificated.
Class Designation
for each REMIC I Uncertificated
Regular Interest and REMIC I Initial
Component I of the Type of Pass-Through Uncertificated
Class R Certificates Interest Rate Principal Balance Final Maturity Date*
Class Y-1 Regular Variable(1) $200,202.42 November 25, 2045
Class Y-2 Regular Variable(2) $348,830.80 November 25, 2045
Class Y-3 Regular Variable(3) $68,824.97 November 25, 2045
Class Y-4 Regular Variable(4) $98,833,24 November 25, 2045
Class Z-1 Regular Variable(1) $400,204,639.76 November 25, 2045
Class Z-2 Regular Variable(2) $697,315,092.50 November 25, 2045
Class Z-3 Regular Variable(3) $137,581,112.46 November 25, 2045
Class Z-4 Regular Variable(4) $197,568,303.26 November 25, 2045
Component I of the Residual (5) $100.00 November 25, 2045
Class R
----------------------
* The Distribution Date in the specified month, which is the month following the month the
latest maturing Mortgage Loan matures. For federal income tax purposes, for each
Class of REMIC I Regular Interests, the "latest possible maturity date" shall be the
Final Maturity Date.
(1) Interest distributed to the REMIC I Regular Interests Y-1 and Z-1 on each
Distribution Date will have accrued at the weighted average of the Net Mortgage Rates for
the Group I Mortgage Loans on the applicable Uncertificated Principal Balance outstanding
immediately before such Distribution Date.
(2) Interest distributed to the REMIC I Regular Interests Y-2 and Z-2 on each
Distribution Date will have accrued at the weighted average of the Net Mortgage Rates for
the Group II Mortgage Loans on the applicable Uncertificated Principal Balance
outstanding immediately before such Distribution Date.
(3) Interest distributed to the REMIC I Regular Interests Y-3 and Z-3 on each
Distribution Date will have accrued at the weighted average of the Net Mortgage Rates for
the Group III Mortgage Loans on the applicable Uncertificated Principal Balance
outstanding immediately before such Distribution Date.
(4) Interest distributed to the REMIC I Regular Interests Y-4 and Z-4 on each
Distribution Date will have accrued at the weighted average of the Net Mortgage Rates for
the Group IV Mortgage Loans on the applicable Uncertificated Principal Balance
outstanding immediately before such Distribution Date.
(5) Component I of the Class R Certificates will not bear interest.
(ii) As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be designated as
"REMIC II." Component II of the Class R Certificates will represent the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, Uncertificated
REMIC II Pass-Through Rate and initial Uncertificated Principal Balance for each of the
"regular interests" in REMIC II (the "REMIC II Regular Interests") and the designation and
initial principal amount of the Class R Certificates allocable to Component II of the Class
R Certificates. None of the REMIC II Regular Interests will be certificated.
Uncertificated Initial
REMIC II Uncertificated
Designation s Pass-Through Rate Principal Balance Final Maturity Date*
------------------------- -------------------- ---------------------- --------------------------
LT1 Variable(1) $400,023,432.32 November 25, 2045
LT2 Variable(1) $19,214.62 November 25, 2045
LT3 0.00% $20,825.86 November 25, 2045
LT4 Variable(1) $20,825.86 November 25, 2045
LT5 Variable(1) $20,020.24 November 25, 2045
LT6 0.00% $20,020.24 November 25, 2045
LT7 Variable(1) $20,020.24 November 25, 2045
LT8 Variable(1) $696,887,121.82 November 25, 2045
LT9 Variable(1) $31,104.08 November 25, 2045
LT10 0.00% $38,662.31 November 25, 2045
LT11 Variable(1) $38,662.31 November 25, 2045
LT12 Variable(1) $31,523.91 November 25, 2045
LT13 0.00% $38,242.49 November 25, 2045
LT14 Variable(1) $38,242.49 November 25, 2045
LT15 Variable(1) $33,031.41 November 25, 2045
LT16 0.00% $36,734.99 November 25, 2045
LT17 Variable(1) $36,734.99 November 25, 2045
LT18 Variable(1) $137,538,678.38 November 25, 2045
LT19 Variable(1) $5,818.44 November 25, 2045
LT20 0.00% $7,946.56 November 25, 2045
LT21 Variable(1) $7,946.56 November 25, 2045
LT22 Variable(1) $197,479,245.07 November 25, 2045
LT23 Variable(1) $9,883.36 November 25, 2045
LT24 0.00% $9,883.36 November 25, 2045
LT25 Variable(1) $9,883.36 November 25, 2045
LT26 Variable(1) $9,883.36 November 25, 2045
LT27 0.00% $9,883.36 November 25, 2045
LT28 Variable(1) $9,883.36 November 25, 2045
LT29 Variable(1) $70,884.49 November 25, 2045
LT30 0.00% $72,454.10 November 25, 2045
LT31 Variable(1) $72,454.10 November 25, 2045
LT-Y1 Variable (1) $200,202.42 November 25, 2045
LT-Y2 Variable (1) $348,830.80 November 25, 2045
LT-Y3 Variable (1) $68,824.97 November 25, 2045
LT-Y4 Variable (1) $98,833.24 November 25, 2045
Component II of the (2) $0.00 November 25, 2045
Class R
* The Distribution Date in the specified month, which is the month following the month the
latest maturing Mortgage Loan matures. For federal income tax purposes, for each Class of
REMIC II Regular Interests, the "latest possible maturity date" shall be the Final
Maturity Date.
(1) Calculated as provided in the definition of Uncertificated REMIC II Pass-Through Rate.
(2) Component II of the Class R Certificates will not bear interest.
(iii) As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be designated as
"REMIC III." Component III of the Class R Certificates will represent the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, Uncertificated
REMIC III Pass-Through Rate (which is also the Pass-Through Rate for the Class of
Certificates bearing the same designation) and initial principal amount or Uncertificated
Principal Balance for each of the "regular interests" in REMIC III (the "REMIC III Regular
Interests") and the designation and initial principal amount of the Class R Certificates
allocable to Component III of the Class R Certificates. For federal income tax purposes,
payment of any Carryover Shortfall Amount to any Class of Certificates and all payments to
the Class XP Certificate (which shall not be treated as an interest in any REMIC, but as a
pass-through interest in the Trust entitled to any prepayment penalties payable with respect
to the Mortgage Loans) shall be treated as paid outside of any REMIC formed under this
Agreement and shall not be part of the entitlement of the REMIC III Regular Interest the
ownership of which is represented by the Class of Certificates receiving such payment.
REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-2, IV-X-2 and
M-X will not be certificated.
Designation Initial Principal Pass-Through Rate
Amount
I-A-1 $150,354,000 (1)
I-A-2 $200,000,000 (2)
II-A-1 $470,923,000 (3)
II-A-2 $139,533,000 (4)
III-A-1 $72,266,000 (5)
III-A-2 $48,178,000 (6)
IV-A-1 $107,484,000 (7)
IV-A-2 $65,475,000 (8)
I-X-1 $0 (9)
I-X-2 $0 (9)
II-X-1 $0 (9)
II-X-2 $0 (9)
II-X-3 $0 (9)
III-X-1 $0 (9)
IV-X-2 $0 (9)
IV-X-2 $0 (9)
M-X $0 (10)
M-1 $39,418,000 (11)
M-2 $32,251,000 (12)
M-3 $10,750,000 (13)
M-4 $10,034,000 (14)
M-5 $9,317,000 (15)
M-6 $9,317,000 (16)
B-1 $6,450,000 (17)
B-2 $5,734,000 (18)
B-3 $8,600,000 (19)
B-4 $15,767,000 (20)
B-5 $17,917,000 (20)
B-6 $13,617,839 (20)
Component III (21)
of the Class R $0
XP NA (22)
----------
(1) The Class I-A-1 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(2) The Class I-A-2 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Year MTA plus the related Margin and (ii) the Net Rate Cap.
(3) The Class II-A-1 Certificates will bear interest at a Pass-Through Rate equal to the
least of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the
Net Rate Cap.
(4) The Class II-A-2 Certificates will bear interest at a Pass-Through Rate equal to the
least of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the
Net Rate Cap.
(5) The Class III-A-1 Certificates will bear interest at a Pass-Through Rate equal to the
least of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the
Net Rate Cap.
(6) The Class III-A-2 Certificates will bear interest at a Pass-Through Rate equal to the
least of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the
Net Rate Cap.
(7) The Class IV-A-1 Certificates will bear interest at a Pass-Through Rate equal to the
lesser of (i) One-Year MTA plus the related Margin and (ii) the Net Rate Cap.
(8) The Class IV-A-2 Certificates will bear interest at a Pass-Through Rate equal to lesser
of (i) One-Year MTA plus the related Margin and (ii) the Net Rate Cap.
(9) Calculated as provided in the definition of Uncertificated REMIC III Pass-Through Rate.
(10) Calculated as provided in the definition of Uncertificated REMIC III Pass-Through Rate.
(11) The Class M-1 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(12) The Class M-2 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(13) The Class M-3 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(14) The Class M-4 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(15) The Class M-5 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(16) The Class M-6 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(17) The Class B-1 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(18) The Class B-2 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(19) The Class B-3 Certificates will bear interest at a Pass-Through Rate equal to the least
of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per annum and (iii) the Net
Rate Cap.
(20) The Class B-4, Class B-5 and Class B-6 Certificates will bear interest at a Pass-Through
Rate equal to the least of (i) One-Month LIBOR plus the related Margin, (ii) 10.50% per
annum and (iii) the Net Rate Cap.
(21) Component III of the Class R Certificates will not bear interest.
(22) The Class XP Certificates will not bear any interest. The Class XP Certificates will be
entitled to receive Prepayment Charges collected with respect to the Prepayment Charge
Loans. The Class XP Certificates will not represent an interest in any REMIC, they will
instead represent an interest in the Trust constituted by this Agreement that is a strip
of Prepayment Charges associated with the Prepayment Charge Loans.
(iv) As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-1, IV-X-2 and M-X and any proceeds thereof as a REMIC
for federal income tax purposes, and such segregated pool of assets will be designated as
"REMIC IV." The Class R-X Certificates will represent the sole class of "residual interests"
in REMIC IV for purposes of the REMIC Provisions under federal income tax law. The
following table irrevocably sets forth the designation, Pass-Through Rate and initial
principal amount of each Class of Certificates representing ownership of the "regular
interests" in REMIC IV (the "REMIC IV Regular Interests") and the designation and initial
principal amount of the Class R-X Certificates.
Designations Pass-Through Rate Initial Principal Amount
I-X-1 (1) $0
I-X-2 (2) $0
II-X-1 (3) $0
II-X-2 (4) $0
II-X-3 (5) $0
III-X-1 (6) $0
IV-X-1 (7) $0
IV-X-2 (8) $0
M-X (9) $0
Class R-X (10)
Certificates $0
(1) The Class I-X-1 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Group I Mortgage Loans on the Class I-X-1 Notional Amount, calculated on
the basis of a year of 360 days with twelve 30 day months, over the amount of Accrued
Certificate Interest on the Class I-A-1 Certificates for the related Distribution Date,
without giving effect to any reduction for interest shortfalls on the Group I Mortgage
Loans. REMIC IV Regular Interest I-X-1 will not have an Uncertificated REMIC IV
Pass-Through Rate, but will be entitled to 100% of all amounts distributed or deemed
distributed on REMIC III Regular Interest I-X-1.
(2) The Class I-X-2 Certificates will bear interest in an amount equal to the excess, if any,
of interest accruing for that Interest Accrual Period at the weighted average of the Net
Rates on the Group I Mortgage Loans on the Class I-X-2 Notional Amount, calculated on the
basis of a year of 360 days with twelve 30 day months, over the amount of Accrued
Certificate Interest on the Class I-A-2 Certificates for the related Distribution Date,
without giving effect to any reduction for interest shortfalls on the Group I Mortgage
Loans. REMIC IV Regular Interest I-X-2 will not have an Uncertificated REMIC IV
Pass-Through Rate, but will be entitled to 100% of all amounts distributed or deemed
distributed on REMIC III Regular Interest I-X-2.
(3) The Class II-X-1 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Sub-Group IIa Mortgage Loans on the Class II-X-1 Notional Amount,
calculated on the basis of a year of 360 days with twelve 30 day months, over the amount
of Accrued Certificate Interest on the Class II-A-1a Component and the Class II-A-2a
Components for the related Distribution Date, without giving effect to any reduction for
interest shortfalls on the Group II Mortgage Loans. REMIC IV Regular Interest II-X-1
will not have an Uncertificated IV REMIC Pass-Through Rate, but will be entitled to 100%
of all amounts distributed or deemed distributed on REMIC III Regular Interest II-X-1.
(4) The Class II-X-2 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Sub-Group IIb Mortgage Loans on the Class II-X-2 Notional Amount,
calculated on the basis of a year of 360 days with twelve 30 day months, over the amount
of Accrued Certificate Interest on the Class II-A-1b Component and the Class II-A-2b
Components for the related Distribution Date, without giving effect to any reduction for
interest shortfalls on the Group II Mortgage Loans. REMIC IV Regular Interest II-X-2
will not have an Uncertificated REMIC IV Pass-Through Rate, but will be entitled to 100%
of all amounts distributed or deemed distributed on REMIC III Regular Interest II-X-2.
(5) The Class II-X-3 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Sub-Group IIc Mortgage Loans on the Class II-X-3 Notional Amount,
calculated on the basis of a year of 360 days with twelve 30 day months, over the amount
of Accrued Certificate Interest on the Class II-A-1c Component and the Class II-A-2c
Components for the related Distribution Date, without giving effect to any reduction for
interest shortfalls on the Group II Mortgage Loans. REMIC IV Regular Interest II-X-3
will not have an Uncertificated REMIC IV Pass-Through Rate, but will be entitled to 100%
of all amounts distributed or deemed distributed on REMIC III Regular Interest II-X-3.
(6) The Class III-X-1 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Group III Mortgage Loans on the Class III-X-1 Notional Amount,
calculated on the basis of a year of 360 days with twelve 30 day months, over the amount
of Accrued Certificate Interest on the Class III-A Certificates for the related
Distribution Date, without giving effect to any reduction for interest shortfalls on the
Group III Mortgage Loans. REMIC IV Regular Interest III-X-1 will not have an
Uncertificated REMIC IV Pass-Through Rate, but will be entitled to 100% of all amounts
distributed or deemed distributed on REMIC III Regular Interest III-X-1.
(7) The Class IV-X-1 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Group IV Mortgage Loans on the Class IV-X-1 Notional Amount, calculated
on the basis of a year of 360 days with twelve 30 day months, over the amount of Accrued
Certificate Interest on the Class IV-A-1 Certificates for the related Distribution Date,
without giving effect to any reduction for interest shortfalls on the Group IV Mortgage
Loans. REMIC IV Regular Interest IV-X-1 will not have an Uncertificated REMIC IV
Pass-Through Rate, but will be entitled to 100% of all amounts distributed or deemed
distributed on REMIC III Regular Interest IV-X-1.
(8) The Class IV-X-2 Certificates will bear interest in an amount equal to the excess, if
any, of interest accruing for that Interest Accrual Period at the weighted average of the
Net Rates on the Group IV Mortgage Loans on the Class IV-X-2 Notional Amount, calculated
on the basis of a year of 360 days with twelve 30 day months, over the amount of Accrued
Certificate Interest on the Class IV-A-2 Certificates for the related Distribution Date,
without giving effect to any reduction for interest shortfalls on the Group IV Mortgage
Loans. REMIC IV Regular Interest IV-X-2 will not have an Uncertificated REMIC IV
Pass-Through Rate, but will be entitled to 100% of all amounts distributed or deemed
distributed on REMIC III Regular Interest IV-X-2.
(9) The Class M-X Certificates will bear interest in an amount equal to the excess, if any,
of interest accruing for that Interest Accrual Period at the Net Cap Rate for the Class M
Certificates and the Class B Certificates on the Class M-X Notional Amount, calculated on
the basis of a year of 360 days with twelve 30 day months, over the amount of Accrued
Certificate Interest on the Class M Certificates and the Class B Certificates for the
related Distribution Date, without giving effect to any reduction for interest shortfalls
on the Mortgage Loans. REMIC IV Regular Interest M-X will not have an Uncertificated
REMIC IV Pass-Through Rate, but will be entitled to 100% of all amounts distributed or
deemed distributed on REMIC III Regular Interest M-X.
(10) The Class R-X Certificates will not bear interest.
(d) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the Mortgage Loan with the
latest maturity date in the Trust Fund has been designated as the "latest possible maturity
date" for the REMIC I Regular Interests, REMIC II Regular Interests, REMIC III Regular
Interests, the REMIC IV Regular Interests and the Certificates.
(e) With respect to each Distribution Date, each Class of Certificates shall accrue interest
during the related Interest Accrual Period. With respect to each Distribution Date and
(i) each Class of the Class I-A-2, Class IV-A and Class X Certificates, interest shall be
calculated on the basis of a 360-day year comprised of twelve 30-day months and (ii) each
Class of Class A (other than the Class I-A-2 Certificates and the Class IV-A Certificates),
Class M and Class B Certificates, interest shall be calculated on the basis of a 360-day
year and the actual number of days elapsed, in each case, based upon the respective
Pass-Through Rate set forth, or determined as provided, above and the Current Principal
Amount of such Class applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth in Exhibits ▇-▇, ▇-▇, ▇-▇,
▇-▇, ▇-▇, ▇-▇, A-7 and A-8. On original issuance, the Trustee shall sign, countersign and
shall deliver them at the direction of the Depositor. Pending the preparation of definitive
Certificates of any Class, the Trustee may sign and countersign temporary Certificates that
are printed, lithographed or typewritten, in authorized denominations for Certificates of
such Class, substantially of the tenor of the definitive Certificates in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers or authorized signatories executing such Certificates may
determine, as evidenced by their execution of such Certificates. If temporary Certificates
are issued, the Depositor will cause definitive Certificates to be prepared without
unreasonable delay. After the preparation of definitive Certificates, the temporary
Certificates shall be exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the office of the Trustee, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the Trustee shall sign
and countersign and deliver in exchange therefor a like aggregate principal amount, in
authorized denominations for such Class, of definitive Certificates of the same Class.
Until so exchanged, such temporary Certificates shall in all respects be entitled to the
same benefits as definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a single Certificate of such
Class held by a nominee of the Depository or the DTC Custodian, and beneficial interests
will be held by investors through the book-entry facilities of the Depository in minimum
denominations of $100,000 and in each case increments of $1.00 in excess thereof. On the
Closing Date, the Trustee shall execute and countersign Physical Certificates all in an
aggregate principal amount that shall equal the Current Principal Amount of such Class on
the Closing Date. The Private Certificates shall be issued in certificated fully-registered
form in minimum dollar denominations of $100,000 and integral multiples of $1.00 in excess
thereof, except that one Private Certificate of each Class may be issued in a different
amount so that the sum of the denominations of all outstanding Private Certificates of such
Class shall equal the Current Principal Amount of such Class on the Closing Date. The Class
R Certificates shall each be issued in certificated fully-registered form in the
denomination of $100. The Class R-X Certificates shall each be issued in certificated
fully-registered form with no denomination. Each Class of Global Certificates, if any, shall
be issued in fully registered form in minimum dollar denominations of $100,000 and integral
multiples of $1.00 in excess thereof, except that one Certificate of each Class may be in a
different denomination so that the sum of the denominations of all outstanding Certificates
of such Class shall equal the Current Principal Amount of such Class on the Closing Date.
On the Closing Date, the Trustee shall execute and countersign (i) in the case of each
Class of Offered Certificates, the Certificate in the entire Current Principal Amount of the
respective Class and (ii) in the case of each Class of Private Certificates, Individual
Certificates all in an aggregate principal amount that shall equal the Current Principal
Amount of each such respective Class on the Closing Date. The Certificates referred to in
clause (i) and if at any time there are to be Global Certificates, the Global Certificates
shall be delivered by the Depositor to the Depository or pursuant to the Depository's
instructions, shall be delivered by the Depositor on behalf of the Depository to and
deposited with the DTC Custodian. The Trustee shall sign the Certificates by facsimile or
manual signature and countersign them by manual signature on behalf of the Trustee by one or
more authorized signatories, each of whom shall be Responsible Officers of the Trustee or
its agent. A Certificate bearing the manual and facsimile signatures of individuals who
were the authorized signatories of the Trustee or its agent at the time of issuance shall
bind the Trustee, notwithstanding that such individuals or any of them have ceased to hold
such positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate the manually executed countersignature of
the Trustee or its agent, and such countersignature upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the Closing Date.
All Certificates issued thereafter shall be dated the date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of each 2005-AR5 REMIC within
the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each 2005-AR5 REMIC shall have a tax year that is a
calendar year and shall report income on an accrual basis.
(k) The Trustee on behalf of the Trust shall cause each 2005-AR5 REMIC to timely elect to be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or ambiguities in
this Agreement or in the administration of any Trust established hereby shall be resolved in
a manner that preserves the validity of such elections.
(l) The following legend shall be placed on the Residual Certificates, whether upon original
issuance or upon issuance of any other Certificate of any such Class in exchange therefor or
upon transfer thereof:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE
PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE
THAT (1) SUCH TRANSFEREE IS NOT (A) 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 ▇▇▇▇▇▇▇ MAC, A
MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF EITHER OF THE FOREGOING, (C) 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 UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE
PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO
PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3)
SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE
TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH
PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Section 5.02 Registration of Transfer and Exchange of Certificates. (a) The Trustee shall
maintain at its Corporate Trust Office a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) Subject to Section 5.01(a) and, in the case of any Global Certificate or Physical
Certificate upon the satisfaction of the conditions set forth below, upon surrender for
registration of transfer of any Certificate at any office or agency of the Trustee
maintained for such purpose, the Trustee shall sign, countersign and shall deliver, in the
name of the designated transferee or transferees, a new Certificate of a like Class and
aggregate Fractional Undivided Interest, but bearing a different number.
(c) By acceptance of a Private Certificate or a Residual Certificate, whether upon original
issuance or subsequent transfer, each holder of such Certificate acknowledges the
restrictions on the transfer of such Certificate set forth in the Securities Legend and
agrees that it will transfer such a Certificate only as provided herein. In addition to the
provisions of Section 5.02(h), the following restrictions shall apply with respect to the
transfer and registration of transfer of an Private Certificate or a Residual Certificate to
a transferee that takes delivery in the form of an Individual Certificate:
(i) The Trustee shall register the transfer of an Individual Certificate if the requested
transfer is being made to a transferee who has provided the Trustee with a Rule 144A
Certificate or comparable evidence as to its QIB status.
(ii) The Trustee shall register the transfer of any Individual Certificate if (x) the
transferor has advised the Trustee in writing that the Certificate is being transferred to
an Institutional Accredited Investor along with facts surrounding the transfer as set forth
in Exhibit F-1 hereto; and (y) prior to the transfer the transferee furnishes to the Trustee
an Investment Letter (and the Trustee shall be fully protected in so doing), provided that,
if based upon an Opinion of Counsel addressed to the Trustee to the effect that the delivery
of (x) and (y) above are not sufficient to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and other applicable laws, the Trustee shall as a
condition of the registration of any such transfer require the transferor to furnish such
other certifications, legal opinions or other information prior to registering the transfer
of an Individual Certificate as shall be set forth in such Opinion of Counsel.
(d) So long as a Global Certificate of such Class is outstanding and is held by or on behalf
of the Depository, transfers of beneficial interests in such Global Certificate, or
transfers by holders of Individual Certificates of such Class to transferees that take
delivery in the form of beneficial interests in the Global Certificate, may be made only in
accordance with Section 5.02(h), the rules of the Depository and the following:
(i) In the case of a beneficial interest in the Global Certificate being transferred to an
Institutional Accredited Investor, such transferee shall be required to take delivery in the
form of an Individual Certificate or Certificates and the Trustee shall register such
transfer only upon compliance with the provisions of Section 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global Certificates being transferred
to a transferee that takes delivery in the form of an Individual Certificate or Certificates
of such Class, except as set forth in clause (i) above, the Trustee shall register such
transfer only upon compliance with the provisions of Section 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class being transferred to a transferee
that takes delivery in the form of a beneficial interest in a Global Certificate of such
Class, the Trustee shall register such transfer if the transferee has provided the Trustee
with a Rule 144A Certificate or comparable evidence as to its QIB status.
(iv) No restrictions shall apply with respect to the transfer or registration of transfer of
a beneficial interest in the Global Certificate of a Class to a transferee that takes
delivery in the form of a beneficial interest in the Global Certificate of such Class;
provided that each such transferee shall be deemed to have made such representations and
warranties contained in the Rule 144A Certificate as are sufficient to establish that it is
a QIB.
(e) Subject to Section 5.02(h), an exchange of a beneficial interest in a Global Certificate
of a Class for an Individual Certificate or Certificates of such Class, an exchange of an
Individual Certificate or Certificates of a Class for a beneficial interest in the Global
Certificate of such Class and an exchange of an Individual Certificate or Certificates of a
Class for another Individual Certificate or Certificates of such Class (in each case,
whether or not such exchange is made in anticipation of subsequent transfer, and, in the
case of the Global Certificate of such Class, so long as such Certificate is outstanding and
is held by or on behalf of the Depository) may be made only in accordance with Section
5.02(h), the rules of the Depository and the following:
(i) A holder of a beneficial interest in a Global Certificate of a Class may at any time
exchange such beneficial interest for an Individual Certificate or Certificates of such
Class.
(ii) A holder of an Individual Certificate or Certificates of a Class may exchange such
Certificate or Certificates for a beneficial interest in the Global Certificate of such
Class if such holder furnishes to the Trustee a Rule 144A Certificate or comparable evidence
as to its QIB status.
(iii) A holder of an Individual Certificate of a Class may exchange such Certificate for an
equal aggregate principal amount of Individual Certificates of such Class in different
authorized denominations without any certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual Certificate of a
Class for a beneficial interest in a Global Certificate of such Class as provided herein,
the Trustee shall cancel such Individual Certificate and shall (or shall request the
Depository to) endorse on the schedule affixed to the applicable Global Certificate (or on a
continuation of such schedule affixed to the Global Certificate and made a part thereof) or
otherwise make in its books and records an appropriate notation evidencing the date of such
exchange or transfer and an increase in the certificate balance of the Global Certificate
equal to the certificate balance of such Individual Certificate exchanged or transferred
therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial interest in a Global
Certificate of a Class for an Individual Certificate of such Class as provided herein, the
Trustee shall (or shall request the Depository to) endorse on the schedule affixed to such
Global Certificate (or on a continuation of such schedule affixed to such Global Certificate
and made a part thereof) or otherwise make in its books and records an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the certificate balance
of such Global Certificate equal to the certificate balance of such Individual Certificate
issued in exchange therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual Certificate issued in exchange
for or upon transfer of another Individual Certificate or of a beneficial interest in a
Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in this Section 5.02, the
holder of any Individual Certificate may transfer or exchange the same in whole or in part
(in an initial certificate balance equal to the minimum authorized denomination set forth in
Section 5.01(g) or any integral multiple of $1.00 in excess thereof) by surrendering such
Certificate at the Corporate Trust Office of the Trustee, or at the office of any transfer
agent, together with an executed instrument of assignment and transfer satisfactory in form
and substance to the Trustee in the case of transfer and a written request for exchange in
the case of exchange. The holder of a beneficial interest in a Global Certificate may,
subject to the rules and procedures of the Depository, cause the Depository (or its nominee)
to notify the Trustee in writing of a request for transfer or exchange of such beneficial
interest for an Individual Certificate or Certificates. Following a proper request for
transfer or exchange, the Trustee shall, within five Business Days of such request made at
the Corporate Trust Office of the Trustee, sign, countersign and deliver at the Corporate
Trust Office of the Trustee, to the transferee (in the case of transfer) or holder (in the
case of exchange) or send by first class mail at the risk of the transferee (in the case of
transfer) or holder (in the case of exchange) to such address as the transferee or holder,
as applicable, may request, an Individual Certificate or Certificates, as the case may
require, for a like aggregate Fractional Undivided Interest and in such authorized
denomination or denominations as may be requested. The presentation for transfer or
exchange of any Individual Certificate shall not be valid unless made at the Corporate Trust
Office of the Trustee by the registered holder in person, or by a duly authorized
attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of a like Class and aggregate Fractional Undivided
Interest, upon surrender of the Certificates to be exchanged at the Corporate Trust Office
of the Trustee; provided, however, that no Certificate may be exchanged for new Certificates
unless the original Fractional Undivided Interest represented by each such new Certificate
(i) is at least equal to the minimum authorized denomination or (ii) is acceptable to the
Depositor as indicated to the Trustee in writing. Whenever any Certificates are so
surrendered for exchange, the Trustee shall sign and countersign and the Trustee shall
deliver the Certificates which the Certificateholder making the exchange is entitled to
receive.
(j) If the Trustee so requires, every Certificate presented or surrendered for transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer,
with a signature guarantee, in form satisfactory to the Trustee, duly executed by the holder
thereof or his or her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange of Certificates, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(l) The Trustee shall cancel all Certificates surrendered for transfer or exchange but shall
retain such Certificates in accordance with its standard retention policy or for such
further time as is required by the record retention requirements of the Securities Exchange
Act of 1934, as amended, and thereafter may destroy such Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (a) If (i) any mutilated
Certificate is surrendered to the Trustee, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee such security or indemnity as it may require to save it harmless,
and (iii) the Trustee has not received notice that such Certificate has been acquired by a
third Person, the Trustee shall sign, countersign and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor
and Fractional Undivided Interest but in each case bearing a different number. The
mutilated, destroyed, lost or stolen Certificate shall thereupon be canceled of record by
the Trustee and shall be of no further effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any duplicate Certificate issued pursuant to this
Section 5.03 shall constitute complete and indefeasible evidence of ownership in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. Prior to due presentation of a Certificate for
registration of transfer, the Depositor, the Trustee, the Certificate Insurer (with respect
to the Insured Certificates for the Term of the Policy) and any agent of the Depositor, the
Certificate Insurer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 6.01 and for all other purposes whatsoever. Neither the Depositor, the
Trustee nor any agent of the Depositor or the Trustee shall be affected by notice to the
contrary. No Certificate shall be deemed duly presented for a transfer effective on any
Record Date unless the Certificate to be transferred is presented no later than the close of
business on the third Business Day preceding such Record Date.
Section 5.05 Transfer Restrictions on Residual Certificates. (a) Residual Certificates, or
interests therein, may not be transferred without the prior express written consent of the
Tax Matters Person and the Seller, which cannot be unreasonably withheld. As a prerequisite
to such consent, the proposed transferee must provide the Tax Matters Person, the Seller and
the Trustee with an affidavit that the proposed transferee is a Permitted Transferee (and,
unless the Tax Matters Person and the Seller consent to the transfer to a person who is not
a U.S. Person, an affidavit that it is a U.S. Person) as provided in Section 5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate (including a beneficial
interest therein) may be made unless, prior to the transfer, sale or other disposition of a
Residual Certificate, the proposed transferee (including the initial purchasers thereof)
delivers to the Tax Matters Person, the Trustee and the Depositor an affidavit in the form
attached hereto as Exhibit E stating, among other things, that as of the date of such
transfer (i) such transferee is a Permitted Transferee and that (ii) such transferee is not
acquiring such Residual Certificate for the account of any person who is not a Permitted
Transferee. The Tax Matters Person shall not consent to a transfer of a Residual
Certificate if it has actual knowledge that any statement made in the affidavit issued
pursuant to the preceding sentence is not true. Notwithstanding any transfer, sale or other
disposition of a Residual Certificate to any Person who is not a Permitted Transferee, such
transfer, sale or other disposition shall be deemed to be of no legal force or effect
whatsoever and such Person shall not be deemed to be a Holder of a Residual Certificate for
any purpose hereunder, including, but not limited to, the receipt of distributions thereon.
If any purported transfer shall be in violation of the provisions of this Section 5.05(b),
then the prior Holder thereof shall, upon discovery that the transfer of such Residual
Certificate was not in fact permitted by this Section 5.05(b), be restored to all rights as
a Holder thereof retroactive to the date of the purported transfer. None of the Trustee,
the Tax Matters Person or the Depositor shall be under any liability to any Person for any
registration or transfer of a Residual Certificate that is not permitted by this Section
5.05(b) or for making payments due on such Residual Certificate to the purported Holder
thereof or taking any other action with respect to such purported Holder under the
provisions of this Agreement so long as the written affidavit referred to above was received
with respect to such transfer, and the Tax Matters Person, the Trustee and the Depositor, as
applicable, had no knowledge that it was untrue. The prior Holder shall be entitled to
recover from any purported Holder of a Residual Certificate that was in fact not a permitted
transferee under this Section 5.05(b) at the time it became a Holder all payments made on
such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof,
shall be deemed for all purposes to have consented to the provisions of this Section
5.05(b) and to any amendment of this Agreement deemed necessary (whether as a result of new
legislation or otherwise) by counsel of the Tax Matters Person or the Depositor to ensure
that the Residual Certificates are not transferred to any Person who is not a Permitted
Transferee and that any transfer of such Residual Certificates will not cause the imposition
of a tax upon the Trust or cause any REMIC to fail to qualify as a REMIC.
(c) The Class R-X Certificates (including a beneficial interest therein) and, unless the Tax
Matters Person shall have consented in writing (which consent may be withheld in the Tax
Matters Person's sole discretion), the Class R Certificates (including a beneficial interest
therein) may not be purchased by or transferred to any person who is not a United States
Person.
(d) By accepting a Residual Certificate, the purchaser thereof agrees to be a Tax Matters
Person if it is the Holder of the largest percentage interest of such Certificate, and
appoints the Trustee to act as its agent with respect to all matters concerning the tax
obligations of the Trust.
Section 5.06 Restrictions on Transferability of Certificates. (a) No offer, sale, transfer
or other disposition (including pledge) of any Certificate shall be made by any Holder
thereof unless registered under the Securities Act, or an exemption from the registration
requirements of the Securities Act and any applicable state securities or "Blue Sky" laws is
available and the prospective transferee (other than the Depositor) of such Certificate
signs and delivers to the Trustee an Investment Letter, if the transferee is an
Institutional Accredited Investor, in the form set forth as Exhibit F-l hereto, or a Rule
144A Certificate, if the transferee is a QIB, in the form set forth as Exhibit F-2 hereto.
Notwithstanding the provisions of the immediately preceding sentence, no restrictions shall
apply with respect to the transfer or registration of transfer of a beneficial interest in
any Certificate that is a Global Certificate of a Class to a transferee that takes delivery
in the form of a beneficial interest in the Global Certificate of such Class provided that
each such transferee shall be deemed to have made such representations and warranties
contained in the Rule 144A Certificate as are sufficient to establish that it is a QIB. In
the case of a proposed transfer of any Certificate to a transferee other than a QIB, the
Trustee may require an Opinion of Counsel addressed to the Trustee that such transaction is
exempt from the registration requirements of the Securities Act. The cost of such opinion
shall not be an expense of the Trustee or the Trust Fund.
(b) The Private Certificates shall each bear a Securities Legend.
Section 5.07 ERISA Restrictions. (a) Subject to the provisions of subsection (b), no
Residual Certificates or Private Certificates may 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 ERISA or Section 4975 of the Code, or by a person using "plan assets"
of a Plan, unless the proposed transferee provides the Trustee, with an Opinion of Counsel
addressed to the Servicer and the Trustee (upon which they may rely) that is satisfactory to
the Trustee, which opinion will not be at the expense of the Servicer or the Trustee, that
the purchase of such Certificates by or on behalf of such Plan is permissible under
applicable law, will not constitute or result in a nonexempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Depositor, the Servicer or the
Trustee to any obligation in addition to those undertaken in this Agreement.
(b) Unless such Person has provided an Opinion of Counsel in accordance with Section 5.07(a),
any Person acquiring an interest in a Global Certificate which is a Private Certificate, by
acquisition of such Certificate, shall be deemed to have represented to the Trustee, and any
Person acquiring an interest in a Private Certificate in definitive form shall represent in
writing to the Trustee, that it is not acquiring an interest in such Certificate directly or
indirectly by, or on behalf of, or with "plan assets" of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA and/or Section 4975 of the Code.
(c) Each beneficial owner of a Class B-1, Class B-2 or Class B-3 Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or holding of that
certificate or any interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either (i) such
Certificate is rated at least "BBB-" or its equivalent by Fitch, S&P or ▇▇▇▇▇'▇, (ii) such
beneficial owner is not a Plan or investing with "plan assets" of any Plan, or (iii) (1) it
is an insurance company, (2) the source of funds used to acquire or hold the certificate or
interest therein is an "insurance company general account," as such term is defined in
Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
(d) Neither the Servicer nor the Trustee will be required to monitor, determine or inquire as
to compliance with the transfer restrictions with respect to the Global Certificates. Any
attempted or purported transfer of any Certificate in violation of the provisions of Section
s (a), (b) or (c) above shall be void ab initio and such Certificate shall be considered to
have been held continuously by the prior permitted Certificateholder. Any transferor of any
Certificate in violation of such provisions, shall indemnify and hold harmless the Trustee
and the Servicer from and against any and all liabilities, claims, costs or expenses
incurred by the Trustee or the Servicer as a result of such attempted or purported
transfer. The Trustee shall have no liability for transfer of any such Global Certificates
in or through book-entry facilities of any Depository or between or among Depository
Participants or Certificate Owners made in violation of the transfer restrictions set forth
herein.
Section 5.08 Rule 144A Information. For so long as any Private Certificates are outstanding,
(1) the Seller will provide or cause to be provided to any holder of such Private
Certificates and any prospective purchaser thereof designated by such a holder, upon the
request of such holder or prospective purchaser, the information required to be provided to
such holder or prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (2)
the Seller shall update such information from time to time in order to prevent such
information from becoming false and misleading and will take such other actions as are
necessary to ensure that the safe harbor exemption from the registration requirements of the
Securities Act under Rule 144A is and will be available for resales of such Private
Certificates conducted in accordance with Rule 144A.
ARTICLE VI
Payments to Certificateholders
Section 6.01 Distributions on the Certificates. (a) Interest and principal (as applicable)
on the Certificates (other than the Class R Certificates, Class R-X Certificates and Class
XP Certificates) of each Certificate Group will be distributed monthly on each Distribution
Date, commencing in November 2005, in an amount equal to the Available Funds for the related
Loan Group on deposit in the Distribution Account for such Distribution Date. In addition,
on the Distribution Date occurring in November 2005, the Class R Deposit will be distributed
to the Holder of the Class R Certificates in reduction of the Current Principal Amount
thereof. On each Distribution Date, the Available Funds for each Loan Group on deposit in
the Distribution Account shall be distributed as follows:
(A) (I) on each Distribution Date, the Available Funds for Loan Group I will be distributed
to the Class I-A Certificates and the Class I-X Certificates as follows:
first, to the Class I-A Certificates and the Class I-X
Certificates, the Accrued Certificate Interest on each such
Class for such Distribution Date, pro rata, based on the
Accrued Certificate Interest owed to each such Class, and with
respect to the Class I-A-1 Certificates and the initial
Distribution Date, including amounts withdrawn from the Class A
Reserve Fund, and with respect to the Class I-A-2 Certificates
and the first three Distribution Dates, including amounts
withdrawn from the Class I-A-2 Reserve Fund, as applicable;
second, to the Class I-A-1 Certificates, any Carryover
Shortfall Amounts due to such Class I-A-1 Certificates (in
accordance with clause (D) below) to the extent such amount was
deducted from the Accrued Certificate Interest on the Class
I-X-1 Certificates for such Distribution Date;
third, to the Class I-A Certificates and the Class I-X
Certificates, any Accrued Certificate Interest thereon
remaining undistributed from previous Distribution Dates, pro
rata, based on the undistributed Accrued Certificate Interest
owed to each Class, to the extent of remaining Available Funds
for Loan Group I; and
fourth, to the extent of remaining Available Funds for Loan
Group I, the related Senior Optimal Principal Amount for such
Distribution Date, to: (i) the Class I-A Certificates, pro
rata, in reduction of their Current Principal Amounts, until
each such Class has been reduced to zero, and then (ii) the
Class I-X Certificates, in reduction of its Current Principal
Amount, until such amount has been reduced to zero.
(II) on each Distribution Date, the Available Funds for each Sub-Group
of Loan Group II will be distributed to the related Components of the
Class II-A Certificates and the Class II-X Certificates as follows:
first, to each Component of the Class II-A Certificates and the
Class II-X Certificates, the Accrued Certificate Interest on
each such Class or Component for such Distribution Date, pro
rata, based on the Accrued Certificate Interest owed to each
such Class or Component, and with respect to the Class II-A
Certificates and the initial Distribution Date, including
amounts withdrawn from the Class A Reserve Fund;
second, to each Component of the Class II-A Certificates, any
Carryover Shortfall Amounts due to such Class II-A Certificates
(in accordance with clause (D) below) to the extent such amount
was deducted from the Accrued Certificate Interest on the Class
X-2 Certificates for such Distribution Date;
third, to each Component the Class II-A Certificates and the
Class X-2 Certificates, any Accrued Certificate Interest
thereon remaining undistributed from previous Distribution
Dates, pro rata, based on the undistributed Accrued Certificate
Interest owed to each Class to the extent of remaining
Available Funds for Loan Group II (with respect to the Class
II-A-2 Certificates, after payment of amounts due the
Certificate Insurance Provider in reimbursement for
unreimbursed amounts paid by the Certificate Insurance Provider
in respect of Accrued Certificate Interest payable to the
holders of the Class II-A-2 Certificates on any previous
Distribution Date, if any, in an amount not to exceed the pro
rata portion otherwise payable to the Class II-A-2 Certificates
pursuant to this priority third);
fourth, to the extent of remaining Available Funds for Loan
Group II, the related Senior Optimal Principal Amount for such
Distribution Date, to: (i) the Class II-A Certificates, pro
rata, in reduction of their Current Principal Amounts, until
each such Class (and Component thereof) has been reduced to
zero; provided that the amount of any Subsequent Recoveries
payable to the Certificate Insurer prusuant to priority fifth
of this paragraph (II) shall be deducted from the portion of
the Senior Optimal Principal Amount payable to the Class II-A-2
Certificates and then (ii) the Class II-X Certificates, pro
rata, in reduction of their Current Principal Amounts, until
each such amount has been reduced to zero; and
fifth, to the Certificate Insurer, any Reimbursement Amount for
such Distribution Date in respect of any Deficiency Amount
described in clauses (a)(2) or (b)(y) of such definition, but
only to the extent of the portion of Subsequent Recoveries with
respect to the Mortgage Loans with respect to which Realized
Losses were paid by the Certificate Insurer otherwise payable
to the Class II-A-2 Certificates.
(III) on each Distribution Date, the Available Funds for Loan Group
III will be distributed to the Class III-A Certificates and the Class
III-X-1 Certificates as follows:
first, to the Class III-A Certificates and Class III-X-1
Certificates, the Accrued Certificate Interest on each such
Class for such Distribution Date, pro rata, based on the
Accrued Certificate Interest owed to each such Class and with
respect to the Class III-A Certificates and the initial
Distribution Date, including amounts withdrawn from the Class A
Reserve Fund;
second, to the Class III-A Certificates, any Carryover
Shortfall Amounts due to such Class III-A Certificates (in
accordance with clause (D) below) to the extent such amount was
deducted from the Accrued Certificate Interest on the Class
III-X-1 Certificates for such Distribution Date;
third, to the Class III-A Certificates and the Class III-X-1
Certificates, any Accrued Certificate Interest thereon
remaining undistributed from previous Distribution Dates, pro
rata, based on the undistributed Accrued Certificate Interest
owed to each Class, to the extent of remaining Available Funds
for Loan Group III (with respect to the Class III-A-2
Certificates, after payment of amounts due the Certificate
Insurance Provider in reimbursement for unreimbursed amounts
paid by the Certificate Insurance Provider in respect of
Accrued Certificate Interest payable to the holders of the
Class III-A-2 Certificates on any previous Distribution Date,
if any, in an amount not to exceed the pro rata portion
otherwise payable to the Class II-A-2 Certificates pursuant to
this priority third);
fourth, to the extent of remaining Available Funds for Loan
Group III, the related Senior Optimal Principal Amount for such
Distribution Date, to: (i) the Class III-A Certificates, pro
rata, in reduction of their Current Principal Amounts, until
each such Class has been reduced to zero; provided that the
amount of any Subsequent Recoveries payable to the Certificate
Insurer pursuant to priority fifth of this paragraph (III)
shall be deducted from the portion of the Senior Optimal
Principal Amount payable to the Class III-A-2 Certificates and
then (ii) the Class III-X-1 Certificates, in reduction of its
Current Principal Amount, until such amount has been reduced to
zero; and
fifth, to the Certificate Insurer, any Reimbursement Amount for
such Distribution Date in respect of any Deficiency Amount
described in clauses (a)(2) or (b)(y) of such definition, but
only to the extent of the portion of Subsequent Recoveries with
respect to the Mortgage Loans with respect to which Realized
Losses were paid by the Certificate Insurer otherwise payable
to the Class III-A-2 Certificates.
(IV) on each Distribution Date, the Available Funds for Loan Group IV
will be distributed to the Class IV-A Certificates and the Class IV-X
Certificates as follows:
first, to the Class IV-A Certificates and Class IV-X
Certificates, the Accrued Certificate Interest on each such
Class for such Distribution Date, pro rata, based on the
Accrued Certificate Interest owed to each such Class;
second, to the Class IV-A Certificates and the Class IV-X
Certificates, any Accrued Certificate Interest thereon
remaining undistributed from previous Distribution Dates, pro
rata, based on the undistributed Accrued Certificate Interest
owed to each Class, to the extent of remaining Available Funds
for Loan Group IV; and
third, to the extent of remaining Available Funds for
Loan Group IV, the related Senior Optimal Principal Amount for
such Distribution Date, to: (i) the Class IV-A Certificates,
pro rata, in reduction of their Current Principal Amounts,
until each such Class has been reduced to zero, and then (ii)
the Class IV-X Certificates, pro rata, in reduction of their
Current Principal Amount, until such amounts have been reduced
to zero.
(B) On each Distribution Date on or prior to the Cross-Over Date,
an amount equal to the sum of any remaining Available Funds for all
Loan Groups or Sub-Groups after the distributions in clauses (A)(I)
through (A)(IV) above and, with respect to the Class M, Class B-1,
Class B-2 and Class B-3 Certificates, including amounts withdrawn from
the Subordinate Reserve Fund, will be distributed sequentially, in the
following order, to the Class M-X, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates, in each case up to an amount
equal to and in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) except in the case of
the Class M-X Certificates, the Carryover Shortfall Amount due such
Class or Classes of Certificates (in accordance with clause (D) below)
to the extent such amount was deducted from the Accrued Certificate
Interest on the Class M-X Certificates for such Distribution Date, (c)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (d) first to the Class M-X
Certificates, until such Class has been paid to zero and then to the
remaining Subordinate Certificates, sequentially, as described herein,
such Class's Allocable Share for such Distribution Date, in each case,
to the extent of remaining Available Funds for all Loan Groups.
(C) If, after distributions have been made pursuant to priorities
first, second and third of paragraphs (A)(I), (A)(II) and (A)(III)
above and priorities first and second of paragraph (A)(IV) above on any
Distribution Date, the remaining Available Funds for a Loan Group or
Sub-Group is less than the related Senior Optimal Principal Amount for
that Loan Group or Sub-Group, the Senior Optimal Principal Amount for
that Loan Group or Sub-Group shall be reduced by that amount, and the
remaining Available Funds for that Loan Group or Sub-Group will be
distributed as principal among the related Classes of Senior
Certificates, including the Components thereof, on a pro rata basis in
accordance with their respective Current Principal Amounts.
(D) Carryover Shortfall Amounts will be paid (including from
amounts in the Class A Reserve Fund with respect to the Class I-A-1,
Class II-A and Class III-A Certificates as described herein) to (i)
Holders of the Class I-A-1 Certificates, based on the related unpaid
Carryover Shortfall Amounts and to the extent of the amounts deducted
from the Accrued Certificate Interest on the Class I-X-1 Certificates,
(ii) concurrently (a) to the Holders of the Class II-A-1a Component and
the Class II-A-2a Component, pro rata, based on the related unpaid
Carryover Shortfall Amounts and to the extent of the amounts deducted
from the Accrued Certificate Interest on the Class II-X-1 Certificates;
(b) to the Holders of the Class II-A-1b Component and the Class II-A-2b
Component, pro rata, based on the related unpaid Carryover Shortfall
Amounts and to the extent of the amounts deducted from the Accrued
Certificate Interest on the Class II-X-2 Certificates; and (c) to the
Holders of the Class II-A-1c Component and the Class II-A-2c Component,
pro rata, based on the related unpaid Carryover Shortfall Amounts and
to the extent of the amounts deducted from the Accrued Certificate
Interest on the Class II-X-3 Certificates; notwithstanding the
foregoing, any Carryover Shortfall Amounts remaining unpaid on any
Components may be paid from remaining Accrued Certificate Interest on
the unrelated Class II-X Certificates after the related Components have
been paid all Carryover Shortfall Amounts due for such Distribution
Date; and (iii) Holders of the Class III-A Certificates, pro rata,
based on the related unpaid Carryover Shortfall Amounts and to the
extent of the amounts deducted from the Accrued Certificate Interest on
the Class III-X-1 Certificates and (iv) Holders of the Class IV-A
Certificates, pro rata, based on the related unpaid Carryover Shortfall
Amounts and to the extent of the amounts deducted from the Accrued
Certificate Interest on the Class X-4 Certificates. Carryover
Shortfall Amounts will be paid to Holders of the Class M Certificates
and Class B Certificates, sequentially, in the order of priority
described above in paragraph (B), to the extent of the amounts deducted
from the Accrued Certificate Interest on the Class M-X Certificates.
(E) On each Distribution Date, any Available Funds remaining after
payment of interest and principal to the Classes of Certificates
entitled thereto, will be distributed to the Class R Certificates;
provided that if on any Distribution Date there are any Available Funds
for any Loan Group remaining after payment of interest and principal to
a Class or Classes of Certificates entitled thereto, such amounts will
be distributed to the other Classes of Senior Certificates, pro rata,
based upon their Current Principal Amounts, until all amounts due to
all Classes of Senior Certificates have been paid in full, before any
Available Funds are distributed in accordance with this clause to the
Class R Certificates.
(F) On each Distribution Date prior to the Cross-Over Date,
but after the reduction of the aggregate Current Principal Amount of
all of the classes of any of the Group I Certificates, Group II
Certificates, Group III Certificates or Group IV Certificates to zero,
the remaining Certificate Groups will be entitled to receive in
reduction of their Current Principal Amount, pro rata based upon
aggregate Current Principal Amount of the Senior Certificates in each
Certificate Group immediately prior to such Distribution Date, in
addition to any Principal Prepayments related to such remaining Senior
Certificates' respective Loan Group allocated to such Senior
Certificates, 100% of the Principal Prepayments on any Mortgage Loan in
the Loan Group relating to any fully paid Certificate Group. Such
amounts allocated to Senior Certificates shall be treated as part of
the Available Funds for the related Loan Group and distributed as part
of the related Senior Optimal Distribution Amount in accordance with
priority fourth in clause (A)(I) above, priority fourth in clauses
(A)(II) and (A)(III) above and priority third in clause (A)(IV) above,
as applicable, in reduction of the Current Principal Amounts thereof.
Notwithstanding the foregoing, if (i) the weighted average of the
Subordinate Percentages on such Distribution Date equals or exceeds two
times the initial weighted average of the Subordinate Percentages and
(ii) the aggregate principal balance of the Mortgage Loans delinquent
60 days or more (including for this purpose any such Mortgage Loans in
foreclosure and Mortgage Loans with respect to which the related
mortgaged property has been acquired by the Trust), averaged over the
last six months, as a percentage of the sum of the aggregate Current
Principal Amount of the Subordinate Certificates does not exceed 100%,
then the additional allocation of Principal Prepayments to the Senior
Certificates in accordance with this paragraph (F) will not be made and
100% of the Principal Prepayments on any Mortgage Loan in the Loan
Group or Sub-Group relating to the fully paid Certificate Group will be
allocated to the Subordinate Certificates on a pro rata basis.
(G) For any Undercollateralized Certificate Group on any
Distribution Date prior to the Cross-Over Date, (i) 100% of amounts
otherwise allocable to the Subordinate Certificates in respect of
principal will be distributed to the Senior Certificates of such
Undercollateralized Certificate Group on a pro rata basis in accordance
with their respective Current Principal Amounts in reduction of the
Current Principal Amounts thereof, until the aggregate Current
Principal Amounts of such Senior Certificates is an amount equal to the
aggregate Scheduled Principal Balance of the Mortgage Loans in the
related Loan Group and (ii) the Accrued Certificate Interest otherwise
allocable to the Subordinate Certificates on such Distribution Date
will be reduced and distributed to such Senior Certificates, to the
extent of any amount due and unpaid on such Senior Certificates, in an
amount equal to one month's interest at a rate equal to the related
Pass-Through Rate for such Distribution Date on the related
Undercollateralized Amount. Any such reduction in the Accrued
Certificate Interest on the Subordinate Certificates will be allocated
in reverse order of their respective numerical designations, commencing
with the Class B-6 Certificates. If there exists more than one
Undercollateralized Certificate Group on a Distribution Date, amounts
distributable to such Undercollateralized Certificate Groups pursuant
to this paragraph will be allocated between such Undercollateralized
Certificate Groups, pro rata, based upon the amount by which their
respective aggregate Current Principal Amounts exceed the aggregate
Scheduled Principal Balance of the Mortgage Loans in their respective
Loan Groups.
(b) No Accrued Certificate Interest will be payable with respect to any Class of Certificates
after the Distribution Date on which the Current Principal Amount of such Certificate has
been reduced to zero.
(c) If on any Distribution Date the Available Funds for the Senior Certificates in any
Certificate Group is less than the Accrued Certificate Interest on the related Senior
Certificates for such Distribution Date prior to reduction for Net Interest Shortfalls and
the interest portion of Realized Losses, the shortfall will be allocated to the holders of
the Class of Senior Certificates in such Certificate Group on a pro rata basis in accordance
with the amount of Accrued Certificate Interest for that Distribution Date absent such
shortfalls. In addition, the amount of any interest shortfalls will constitute unpaid
Accrued Certificate Interest and will be distributable to holders of the Certificates of the
related Classes entitled to such amounts on subsequent Distribution Dates, to the extent of
the applicable Available Funds after current interest distributions as required herein. Any
such amounts so carried forward will not bear interest. Shortfalls in interest payments
will not be offset by a reduction in the servicing compensation of the Servicer or
otherwise, except to the extent of applicable Compensating Interest Payments.
(d) The expenses and fees of the Trust shall be paid by each of the 2005-AR5 REMICs, to the
extent that such expenses relate to the assets of each of such respective 2005-AR5 REMICs,
and all other expenses and fees of the Trust shall be paid pro rata by each of the 2005-AR5
REMICs.
(e) On any Distribution Date, the Senior Percentage of the Net Deferred Interest
for each Loan Group will be allocated to the related Certificate Group, on a pro rata basis,
in accordance with the amount of interest accrued on such Class at its Pass-Through Rate for
the Interest Accrual Period for such Distribution Date. The remainder of the Net Deferred
Interest on each Loan Group will be allocated to the Class M Certificates and the Class B
Certificates, on a pro rata basis, in accordance with the amount of interest that accrued on
such Class at its Pass-Through Rate for the Interest Accrual Period related to that
Distribution Date.
(f) On each Distribution Date, all amounts transferred from the Class XP Reserve
Account representing Prepayment Charges in respect of the Prepayment Charge Loans received
during the related Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trustee to the Holders of the Class XP Certificates and shall not be
available for distribution to the Holders of any other Class of Certificates.
Section 6.02 Allocation of Losses and Subsequent Recoveries.(a) On or prior to each
Determination Date, the Servicer shall determine the amount of any Realized Loss in respect
of each Mortgage Loan that occurred during the immediately preceding calendar month.
(b) With respect to any Certificates any Distribution Date, the principal portion of each
Realized Loss on a Mortgage Loan in a Loan Group shall be allocated as follows:
first, to the Class B-6 Certificates until the Current Principal Amount
thereof has been reduced to zero;
second, to the Class B-5 Certificates until the Current Principal Amount
thereof has been reduced to zero;
third, to the Class B-4 Certificates until the Current Principal Amount
thereof has been reduced to zero;
fourth, to the Class B-3 Certificates until the Current Principal Amount
thereof has been reduced to zero;
fifth, to the Class B-2 Certificates until the Current Principal Amount
thereof has been reduced to zero;
sixth, to the Class B-1 Certificates until the Current Principal Amount of
each such Class thereof has been reduced to zero;
seventh, to the Class M-6 Certificates until the Current Principal Amount
thereof has been reduced to zero;
eighth, to the Class M-5 Certificates until the Current Principal Amount
thereof has been reduced to zero;
ninth, to the Class M-4 Certificates until the Current Principal Amount
thereof has been reduced to zero;
tenth, to the Class M-3 Certificates until the Current Principal Amount
thereof has been reduced to zero;
eleventh, to the Class M-2 Certificates until the Current Principal Amount
thereof has been reduced to zero;
twelfth, to the Class M-1 Certificates until the Current Principal Amount
thereof has been reduced to zero;
thirteenth, to the Class M-X Certificates until the Current Principal Amount
thereof has been reduced to zero; and
fourteenth, to the Class of Senior Certificates in the related Certificate
Group as described in Section 6.02(d) hereof.
(c) Notwithstanding the foregoing clause (b), no such allocation of any Realized Loss shall
be made on a Distribution Date to any Class of (i) Subordinate Certificates to the extent
that such allocation would result in the reduction of the aggregate Current Principal
Amounts of all Certificates as of such Distribution Date, after giving effect to all
distributions and prior allocations of Realized Losses on the Mortgage Loans on such date,
to an amount less than the aggregate Scheduled Principal Balance of all of the Mortgage
Loans as of the first day of the month of such Distribution Date and (ii) Senior
Certificates in a Certificate Group to the extent that such allocation would result in the
reduction of the aggregate Current Principal Amounts of all the Certificates in such
Certificate Group as of such Distribution Date, after giving effect to all distributions and
prior allocations of Realized Losses on the Mortgage Loans in the related Loan Group on such
date, to an amount less than the aggregate Scheduled Principal Balance of all of the
Mortgage Loans in such Loan Group as of the first day of the month of such Distribution Date
(such limitation described in clauses (i) and (ii), the "Loss Allocation Limitation").
(d) The principal portion of any Realized Losses allocated to a Class of Certificates shall
be allocated among the Certificates of such Class in proportion to their respective Current
Principal Amounts. The principal portion of any allocation of Realized Losses on the Group
I Mortgage Loans allocated to the Senior Certificates of the Group I Certificates will be
allocated on any Distribution Date concurrently and pro rata, to (i) the Class I-X
Certificates, pro rata, until the Current Principal Amount of each such Class has been
reduced to zero and (ii) the Class I-A-2 Certificates and the Class I-A-1 Certificates,
sequentially in that order, until the Current Principal Amounts of each such Class has been
reduced to zero. The principal portion of any allocation of Realized Losses on the Group II
Mortgage Loans allocated to the Senior Certificates of the Group II Certificates will be
allocated on any Distribution Date as follows: (i) Realized Losses on the Sub-Group IIa
Mortgage Loans to the Class II-X-1 Certificates, Class II-A-1a Component and Class II-A-2a
Component, pro rata, until the Current Principal Amount of each such Class or Component has
been reduced to zero, (ii) Realized Losses on the Sub-Group IIb Mortgage Loans to the Class
II-X-2 Certificates, Class II-A-1b Component and the Class II-A-2b Component, pro rata,
until the Current Principal Amount of each such Class or Compoenent has been reduced to zero
and (iii) Realized Losses on the Sub-Group IIc Mortgage Loans to the Class II-X-3
Certificates, Class II-A-1c Component and the Class II-A-2c Component, pro rata, until the
Current Principal Amount of each such Class or Compoenent has been reduced to zero;
provided, however, any losses allocated to the Class II-A-1 Certificates will be allocated
first to the Class II-A-2 Certificates to the extent any Class II-A-2 Certificates (or
Components thereof) remain outstanding. The principal portion of Realized Losses on the
Group III Mortgage Loans allocated to the Senior Certificates of the Group III Certificates
will be allocated on any Distribution Date concurrently and pro rata, to (i) the Class
III-X-1 Certificates until the Current Principal Amount of such Class has been reduced to
zero and (ii) the Class III-A-2 Certificates and the Class III-A-1 Certificates,
sequentially in that order, until the Current Principal Amount of each such Class has been
reduced to zero. The principal portion of Realized Losses on the Group IV Mortgage Loans
allocated to the Senior Certificates of the Group IV Certificates will be allocated on any
Distribution Date concurrently and pro rata, to (i) the Class IV-X Certificates, pro rata,
until the Current Principal Amount of each such Class has been reduced to zero and (ii) the
Class IV-A-2 Certificates and the Class IV-A-1 Certificates, sequentially in that order,
until the Current Principal Amount of each such Class has been reduced to zero.
(e) Realized Losses shall be allocated on the Distribution Date in the month following the
month in which such loss was incurred and, in the case of the principal portion thereof,
after giving effect to distributions made on such Distribution Date.
(f) On each Distribution Date, the Trustee shall determine the Subordinate Certificate
Writedown Amount. Any Subordinate Certificate Writedown Amount shall effect a corresponding
reduction in the Current Principal Amount of the Subordinate Certificates in the reverse
order of their numerical Class designations.
(g) The applicable Senior Percentage of Net Interest Shortfalls will be allocated among the
Senior Certificates in the related Certificate Group in proportion to the amount of Accrued
Certificate Interest that would have been allocated thereto in the absence of such
shortfalls. The applicable Subordinate Percentage of Net Interest Shortfall will be
allocated sequentially to the Class B Certificates and the Class M Certificates, beginning
with the Class B Certificates with the highest numerical designation and then to the Class M
Certificates with the highest numerical designation, in proportion to the amount of Accrued
Certificate Interest that would have been allocated thereto in the absence of such
shortfalls. If no Class B Certificates and Class M Certificates remain outstanding, the
applicable Subordinate Percentage of Net Interest Shortfall will be allocated to the Class
M-X Certificates. The interest portion of any Realized Losses with respect to the Mortgage
Loans occurring on or prior to the Cross-Over Date will be allocated to the Subordinate
Certificates in inverse order of their numerical Class designations. Following the
Cross-Over Date, the interest portion of Realized Losses on the Mortgage Loans will be
allocated to the Senior Certificates in the related Certificate Group on a pro rata basis in
proportion to the amount of Accrued Certificate Interest that would have been allocated
thereto in the absence of such Realized Losses.
(h) In addition, in the event that the Servicer receives any Subsequent Recoveries
on the Mortgage Loans, the Servicer shall deposit such funds into the Custodial Account
pursuant to Section 4.01(a)(ii). If, after taking into account such Subsequent Recoveries,
the amount of a Realized Loss is reduced, the amount of such Subsequent Recoveries will be
applied to increase the Current Principal Amount of the Class of Subordinate Certificates
with the highest payment priority to which Realized Losses have been allocated, but not by
more than the amount of Realized Losses previously allocated to that Class of Subordinate
Certificates pursuant to this Section 6.02. The amount of any remaining Subsequent
Recoveries will be applied to sequentially increase the Current Principal Amount of the
Subordinate Certificates, beginning with the Class of Subordinate Certificates with the next
highest payment priority, up to the amount of such Realized Losses previously allocated to
such Class or Classes of Certificates pursuant to this Section 6.02. Holders of such
Certificates will not be entitled to any payments in respect of current interest on the
amount of such increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the Current Principal
Amount of each Subordinate Certificate of such Class in accordance with its respective
Fractional Undivided Interest.
Section 6.03 Payments. (a) On each Distribution Date, other than the final Distribution
Date, the Trustee shall distribute to each Certificateholder of record as of the immediately
preceding Record Date the Certificateholder's pro rata share of its Class (based on the
aggregate Fractional Undivided Interest represented by such Holder's Certificates) of all
amounts required to be distributed on such Distribution Date to such Class. The Trustee
shall calculate the amount to be distributed to each Class and, based on such amounts, the
Trustee shall determine the amount to be distributed to each Certificateholder. The
Trustee's calculations of payments shall be based solely on information provided to the
Trustee by the Servicer. The Trustee shall not be required to confirm, verify or recompute
any such information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made (i) by
check mailed to each Certificateholder entitled thereto at the address appearing in the
Certificate Register or (ii) upon receipt by the Trustee on or before the fifth Business Day
preceding the Record Date of written instructions from a Certificateholder by wire transfer
to a United States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer; provided,
however, that the final payment in respect of each Class of Certificates will be made only
upon presentation and surrender of such respective Certificates at the office or agency of
the Trustee specified in the notice to Certificateholders of such final payment.
Section 6.04 Statements to Certificateholders. (a) On each Distribution Date, concurrently
with each distribution to Certificateholders, the Trustee shall make available to the
parties hereto, the Certificate Insurer and each Certificateholder via the Trustee's
internet website as set forth below, the following information, expressed with respect to
clauses (i) through (vii) in the aggregate and as a Fractional Undivided Interest
representing an initial Current Principal Amount of $100,000, or in the case of the Residual
Certificates, an initial Current Principal Amount of $100:
(i) the Current Principal Amount and/or Notional Amount of each Class and Component of
Certificates immediately prior to such Distribution Date;
(ii) the amount of the distribution allocable to principal on each applicable Class of
Certificates;
(iii) the aggregate amount of interest accrued at the related Pass-Through Rate with respect
to each Class during the related Interest Accrual Period;
(iv) the Net Interest Shortfall (including a break-down of the components thereof) for each
Loan Group and Sub-Group and any other adjustments to interest at the related Pass-Through
Rate necessary to account for any difference between interest accrued and aggregate interest
distributed with respect to each Class or Components of Certificates;
(v) the amount of the distribution allocable to interest on each Class or Components of
Certificates for such Distribution Date;
(vi) the Pass-Through Rates for each Class and Component of Certificates with respect to such
Distribution Date;
(vii) the Current Principal Amount and/or Notional Amount of each Class and Component of
Certificates after such Distribution Date;
(viii) the amount of any Monthly Advances, Compensating Interest Payments and outstanding
unreimbursed advances by the Servicer included in such distribution separately stated for
each Loan Group and Sub-Group;
(ix) the aggregate amount of any Realized Losses (listed separately for each category of
Realized Loss and for each Loan Group and Sub-Group) during the related Prepayment Period
and cumulatively since the Cut-off Date and the amount and source (separately identified) of
any distribution in respect thereof included in such distribution;
(x) with respect to each Mortgage Loan which incurred a Realized Loss during the related
Prepayment Period, (i) the loan number, (ii) the Scheduled Principal Balance of such
Mortgage Loan as of the Cut-off Date (ii) the Scheduled Principal Balance of such Mortgage
Loan as of the beginning of the related Due Period, (iii) the Net Liquidation Proceeds with
respect to such Mortgage Loan and (iv) the amount of the Realized Loss with respect to such
Mortgage Loan;
(xi) with respect to each Loan Group and Sub-Group, the amount of Scheduled Principal and
Principal Prepayments, (including but separately identifying the principal amount of
Principal Prepayments, Insurance Proceeds, the purchase price in connection with the
purchase of Mortgage Loans, cash deposits in connection with substitutions of Mortgage Loans
and Net Liquidation Proceeds) and the number and principal balance of Mortgage Loans
purchased or substituted for during the relevant period and cumulatively since the Cut-off
Date or the related;
(xii) the number of Mortgage Loans (excluding REO Property) in each Loan Group and Sub-Group
remaining in the Trust Fund as of the end of the related Prepayment Period;
(xiii) information in each Loan Group and Sub-Group and in the aggregate regarding any
Mortgage Loan delinquencies as of the end of the related Prepayment Period, including the
aggregate number and aggregate Outstanding Principal Balance of Mortgage Loans (a)
delinquent 30 to 59 days on a contractual basis, (b) delinquent 60 to 89 days on a
contractual basis, and (c) delinquent 90 or more days on a contractual basis, in each case
as of the close of business on the last Business Day of the immediately preceding month;
(xiv) for each Loan Group and Sub-Group, the number of Mortgage Loans in the foreclosure
process as of the end of the related Due Period and the aggregate Outstanding Principal
Balance of such Mortgage Loans;
(xv) for each Loan Group and Sub-Group, the number and aggregate Outstanding Principal
Balance of all Mortgage Loans as to which the Mortgaged Property was REO Property as of the
end of the related Due Period;
(xvi) the book value (the sum of (A) the Outstanding Principal Balance of such Mortgage Loan,
(B) accrued interest through the date of foreclosure and (C) foreclosure expenses) of any
REO Property in each Loan Group and Sub-Group; provided that, in the event that such
information is not available to the Trustee on the Distribution Date, such information shall
be furnished promptly after it becomes available;
(xvii) the amount of Net Deferred Interest and Realized Losses allocated to each Class or
Component of Certificates since the prior Distribution Date and in the aggregate for all
prior Distribution Dates;
(xviii) the Average Loss Severity Percentage for each Loan Group and Sub-Group;
(xix) the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and
Subordinate Prepayment Percentage, in each case, for such Distribution Date;
(xx) the amount withdrawn from the Class A Reserve Fund (with respect to the
initial Distribution Date only), on that Distribution Date;
(xxi) the amount withdrawn from the Class I-A-2 Reserve Fund (with respect to
the first three Distribution Dates only), on such Distribution Date;
(xxii) the amount withdrawn from the Subordinate Reserve Fund (with respect to
the initial Distribution Date only), on that Distribution Date;
(xxiii)the amount of the Reimbursement Amount, if any; and
(xxiv) the Deficiency Amount, if any, to be paid by the Certificate Insurer.
The information set forth above shall be calculated or reported, as the case may be,
by the Trustee, based solely on, and to the extent of, information provided to the Trustee
by the Servicer. The Trustee may conclusively rely on such information and shall not be
required to confirm, verify or recalculate any such information.
The Trustee will make available each month the monthly statement to
Certificateholders and the Certificate Insurer via the Trustee's website initially located
at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇." Assistance in using the website can be obtained by calling the
Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above
distribution option are entitled to have a paper copy mailed to them via first class mail by
calling the Trustee's customer service desk and indicating such. The Trustee shall have the
right to change the way such reports are distributed in order to make such distribution more
convenient and/or more accessible to the parties, and the Trustee shall provide timely and
adequate notification to all parties regarding any such change.
(b) Within a reasonable period of time after the end of the preceding calendar year beginning
in 2006, the Trustee will furnish a report to each Holder of the Certificates of record at
any time during the prior calendar year as to the aggregate of amounts reported pursuant to
subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other customary information as the
Trustee determines may be necessary and/or to be required by the Internal Revenue Service or
by a federal or state law or rules or regulations to enable such Holders to prepare their
tax returns for such calendar year. Such obligations shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the Trustee
pursuant to the requirements of the Code.
Section 6.05 Monthly Advances. If the interest portion of the Scheduled Payment on a
Mortgage Loan that was due on a related Due Date is delinquent other than as a result of
application of the Relief Act and exceeds the amount deposited in the Custodial Account
which will be used for an advance with respect to such Mortgage Loan, the Servicer will
deposit in the Custodial Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an amount equal to such deficiency, net
of the Servicing Fee for such Mortgage Loan, except to the extent the Servicer determines
any such advance to be a Nonrecoverable Advance. If the Servicer deems an advance to be a
Nonrecoverable Advance, on the Distribution Account Deposit Date, the Servicer shall present
an Officer's Certificate to the Trustee (i) stating that the Servicer elects not to make a
Monthly Advance in a stated amount and (ii) detailing the reason it deems the advance to be
a Nonrecoverable Advance.
Notwithstanding the foregoing, the amount of such deposit may be reduced by the
Amount Held for Future Distribution (as defined below) then on deposit in the Custodial
Account. Any portion of the Amount Held for Future Distribution used to pay Monthly Advances
shall be replaced by the Servicer by deposit into the Custodial Account on any future
Distribution Account Deposit Date to the extent that the funds that are available in the
Custodial Account on such Distribution Account Deposit Date are less than the amount of
payments required to be made by the Servicer on such Distribution Account Deposit Date.
The "Amount Held for Future Distribution" as to any Distribution Account
Deposit Date shall be the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date which were received after the Cut-off Date on
account of (i) Liquidation Proceeds, Insurance Proceeds, and Principal Prepayments received
or made in the month of such Distribution Account Deposit Date, and (ii) payments which
represent early receipt of scheduled payments of interest due on a date or dates subsequent
to the related Due Date.
Section 6.06 Compensating Interest Payments. The Servicer shall deposit in the Custodial
Account not later than each Distribution Account Deposit Date an amount equal to the lesser
of (i) the sum of the aggregate amounts required to be paid by the Servicer under this
Agreement with respect to subclauses (a) and (b) of the definition of Interest Shortfall
with respect to the Mortgage Loans for the related Distribution Date and (ii) the Servicing
Fee for such Distribution Date (such amount, the "Compensating Interest Payment"). The
Servicer shall not be entitled to any reimbursement of any Compensating Interest Payment.
Compensating Interest Payments will be allocated to each Loan Group, on a pro rata basis,
based on the respective amounts dtermined by clause (i) of this Section 6.06.
Section 6.07 Distributions on REMIC Regular Interests.
(a) On each Distribution Date, the Trustee shall be deemed to distribute to itself
on behalf of REMIC II as the holder of the REMIC I Regular Interests, those portions of the
REMIC I Distribution Amount not designated to Component I of the Class R Certificates, in
the amounts and in accordance with the priorities set forth in the definition of REMIC I
Distribution Amount.
(b) On each Distribution Date, the Trustee shall be deemed to distribute to itself
on behalf of REMIC III as the holder of the REMIC II Regular Interests, those portions of
the REMIC II Distribution Amount not designated to Component II of the Class R Certificates,
in the amounts and in accordance with the priorities set forth in the definition of REMIC II
Distribution Amount.
(c) On each Distribution Date the Trustee shall be deemed to distribute from REMIC
II the REMIC III Distribution Amount to: (i) the Holders of each Class of Certificates
(other than the Class R, Class R-X, Class X and Class XP Certificates), as the holders of
the REMIC III Interests (other than REMIC III Regulart Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇, IV-X-2, IV-X-2 and M-X) and (ii) to itself on behalf of REMIC IV,
as the holder of REMIC III Regular Interests ▇-▇-▇, ▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇▇-▇-▇,
IV-X-2, IV-X-2 and M-X, in the amounts and in accordance with the priorities set forth in
the definition of REMIC III Distirbution Amount.
(d) On each Distribution Date, the Trustee shall be deemed to distribute to the
holders of the Senior Class X and Class M-X Certificates, as the holders of REMIC IV Regular
Interests, the amounts set forth in the definition of REMIC IV Distribution Amount.
(e) Notwithstanding the deemed distributions on the REMIC Regular Interests
described in this Section 6.07, distributions of funds from the Certificate Account shall be
made only in accordance with Section 6.01.
ARTICLE VII
The Servicer
Section 7.01 Liabilities of the Servicer. The Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and undertaken by
it herein.
Section 7.02 Merger or Consolidation of the Servicer.
(a) The Servicer will keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation, and will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and enforceability of this
Agreement, the Certificates or any of the Mortgage Loans and to perform its duties under
this Agreement.
(b) Any Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger or consolidation to which the Servicer shall be a party, or any
Person succeeding to the business of the Servicer, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 7.03 Indemnification of the Trustee.
(a) The Servicer agrees to indemnify the Indemnified Persons for, and to hold them harmless
against, any loss, liability or expense (including reasonable legal fees and disbursements
of counsel) incurred on their part that may be sustained in connection with, arising out of,
or relating to, any claim or legal action (including any pending or threatened claim or
legal action) relating to this Agreement or the Certificates or the powers of attorney
delivered by the Trustee hereunder (i) related to the Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred by reason of
the Servicer's willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties hereunder,
provided, in each case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), the Indemnified Person shall have given the Servicer and
the Depositor written notice thereof promptly after the Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Trustee's failure to give any
such notice shall not affect the Indemnified Person's right to indemnification hereunder,
except to the extent the Servicer is materially prejudiced by such failure to give notice.
This indemnity shall survive the resignation or removal of the Servicer or the Trustee and
the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any loss, liability or expense of
any Indemnified Person not otherwise covered by the Servicer's indemnification pursuant to
Section 7.03(a).
Section 7.04 Limitations on Liability of the Servicer and Others. Subject to the obligation
of the Servicer to indemnify the Indemnified Persons pursuant to Section 7.03:
(a) Neither the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Indemnified Persons, the Depositor, the Trust
Fund or the Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such Person against any
breach of warranties or representations made herein or any liability which would otherwise
be imposed by reason of such Person's willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations and duties
hereunder.
(b) The Servicer and any director, officer, employee or agent of the Servicer may rely in
good faith on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
(c) The Servicer, the Custodian and any director, officer, employee or agent of the Servicer
or the Custodian shall be indemnified by the Trust and held harmless thereby against any
loss, liability or expense (including reasonable legal fees and disbursements of counsel)
incurred on their part that may be sustained in connection with, arising out of, or related
to, any claim or legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates, other than (i) any such loss, liability or
expense related to the Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement), or to the Custodian's failure to perform its duties under the
Custodial Agreement, respectively, or (ii) any such loss, liability or expense incurred by
reason of the Servicer's or the Custodian's willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or under the Custodial Agreement, as
applicable, or by reason of reckless disregard of obligations and duties hereunder or under
the Custodial Agreement, as applicable.
(d) The Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties under this Agreement and that in its
opinion may involve it in any expense or liability; provided, however, the Servicer may in
its discretion, with the consent of the Trustee (which consent shall not be unreasonably
withheld), undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund, and the Servicer shall be entitled to be reimbursed therefor out of the Custodial
Account as provided by Section 4.02. Nothing in this Section 7.04(d) shall affect the
Servicer's obligation to service and administer the Mortgage Loans in accordance with this
Agreement.
(e) In taking or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Servicer shall not be
required to investigate or make recommendations concerning potential liabilities which the
Trust might incur as a result of such course of action by reason of the condition of the
Mortgaged Properties but shall give notice to the Trustee if it has notice of such potential
liabilities.
Section 7.05 Servicer Not to Resign. Except as provided in Section 7.07, the Servicer shall
not resign from the obligations and duties hereby imposed on it except upon a determination
that any such duties hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Independent Counsel addressed to the Trustee to
such effect delivered to the Trustee. No such resignation by the Servicer shall become
effective until the Trustee or a successor to the Servicer reasonably satisfactory to the
Trustee shall have assumed the responsibilities and obligations of the Servicer in
accordance with Section 8.02 hereof. The Trustee shall notify the Rating Agencies upon
notice of the resignation of the Servicer.
Section 7.06 Successor Servicer. In connection with the appointment of any successor
servicer or the assumption of the duties of the Servicer, the Depositor or the Trustee may
make such arrangements for the compensation of such successor servicer out of payments on
the Mortgage Loans as the Depositor or the Trustee and such successor servicer shall agree.
If the successor servicer does not agree that such market value is a fair price, such
successor servicer shall obtain two quotations of market value from third parties actively
engaged in the servicing of single-family mortgage loans. Notwithstanding the foregoing,
the compensation payable to a successor servicer may not exceed the compensation which the
Servicer would have been entitled to retain if the Servicer had continued to act as Servicer
hereunder.
Section 7.07 Sale and Assignment of Servicing. The Servicer may sell and assign its rights
and delegate its duties and obligations in its entirety as Servicer under this Agreement and
the Depositor may terminate the Servicer without cause and select a new Servicer; provided,
however, that: (i) the purchaser or transferee accepting such assignment and delegation (a)
shall be a Person which shall be qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less than $10,000,000 (unless otherwise
approved by each Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee); and (d) shall
execute and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, which contains an assumption by such Person of the due and
punctual performance and observance of each covenant and condition to be performed or
observed by it as servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Servicer and each Rating Agency's
rating of the Certificates in effect immediately prior to such assignment, sale and
delegation will not be downgraded, qualified or withdrawn as a result of such assignment,
sale and delegation, as evidenced by a letter to such effect delivered to the Servicer and
the Trustee; (iii) the Servicer assigning and selling the servicing shall deliver to the
Trustee an Officer's Certificate and an Opinion of Independent Counsel addressed to the
Trustee, each stating that all conditions precedent to such action under this Agreement have
been completed and such action is permitted by and complies with the terms of this
Agreement; and (iv) in the event the Servicer is terminated without cause by the Depositor,
the Depositor shall pay the terminated Servicer a termination fee equal to 0.25% of the
aggregate Scheduled Principal Balance of the Mortgage Loans at the time the servicing of the
Mortgage Loans is transferred to the successor Servicer. No such assignment or delegation
shall affect any rights or liability of the Servicer arising prior to the effective date
thereof.
ARTICLE VIII
Default
Section 8.01 Events of Default. "Event of Default," wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any administrative or
governmental body) and only with respect to the defaulting Servicer:
(i) The Servicer fails to cause to be deposited in the Distribution Account any amount so
required to be deposited pursuant to this Agreement (other than a Monthly Advance), and such
failure continues unremedied for a period of three Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have been given to
the Servicer; or
(ii) The Servicer fails to observe or perform in any material respect any other material
covenants and agreements set forth in this Agreement to be performed by it, which covenants
and agreements materially affect the rights of Certificateholders, and such failure
continues unremedied for a period of 60 days (or 15 days with respect to Sections 3.16, 3.17
or 3.18) after the date on which written notice of such failure, properly requiring the same
to be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and
the Trustee by the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Trust Fund; or
(iii) There is entered against the Servicer a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against the Servicer
under any applicable insolvency or reorganization statute and the petition is not dismissed
within 60 days after the commencement of the case; or
(iv) The Servicer consents to the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or substantially all of its property; or the
Servicer admits in writing its inability to pay its debts generally as they become due,
files a petition to take advantage of any applicable insolvency or reorganization statute,
makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its
obligations;
(v) The Servicer assigns or delegates its duties or rights under this Agreement in
contravention of the provisions permitting such assignment or delegation under Sections 7.05
or 7.07; or
(vi) The Servicer fails to cause to be deposited in the Distribution Account any Monthly
Advance (other than a Nonrecoverable Advance) by 5:00 p.m. New York City time on the
Distribution Account Deposit Date.
In each and every such case, so long as such Event of Default with respect to the
Servicer shall not have been remedied, either the Trustee or the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the principal of
the Trust Fund, by notice in writing to the Servicer (and to the Trustee if given by such
Certificateholders), with a copy to the Certificate Insurer and the Rating Agencies, and
with the consent of the Company and the Certificate Insurer, may terminate all of the rights
and obligations (but not the liabilities) of the Servicer under this Agreement and in and to
the Mortgage Loans and/or the REO Property serviced by the Servicer and the proceeds
thereof. Upon the receipt by the Servicer of the written notice, all authority and power of
the Servicer under this Agreement, whether with respect to the Certificates, the Mortgage
Loans, REO Property or under any other related agreements (but only to the extent that such
other agreements relate to the Mortgage Loans or related REO Property) shall, subject to
Section 8.02, automatically and without further action pass to and be vested in the Trustee
pursuant to this Section 8.01; and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer as attorney-in-fact or
otherwise, any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Servicer agrees to cooperate with the
Trustee in effecting the termination of the Servicer's rights and obligations hereunder,
including, without limitation, the transfer to the Trustee of (i) the property and amounts
which are then or should be part of the Trust or which thereafter become part of the Trust;
and (ii) originals or copies of all documents of the Servicer reasonably requested by the
Trustee to enable it to assume the Servicer's duties thereunder. In addition to any other
amounts which are then, or, notwithstanding the termination of its activities under this
Agreement, may become payable to the Servicer under this Agreement, the Servicer shall be
entitled to receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as reimbursement under
this Agreement if notice of termination had not been given. The termination of the rights
and obligations of the Servicer shall not affect any obligations incurred by the Servicer
prior to such termination.
Notwithstanding the foregoing, if an Event of Default described in clause (vi) of
this Section 8.01 shall occur, the Trustee shall, by notice in writing to the Servicer,
which may be delivered by telecopy, immediately terminate all of the rights and obligations
of the Servicer thereafter arising under this Agreement, but without prejudice to any rights
it may have as a Certificateholder or to reimbursement of Monthly Advances and other
advances of its own funds, and the Trustee shall act as provided in Section 8.02 to carry
out the duties of the Servicer, including the obligation to make any Monthly Advance the
nonpayment of which was an Event of Default described in clause (vi) of this Section 8.01.
Any such action taken by the Trustee must be prior to the distribution on the relevant
Distribution Date.
Section 8.02 Trustee to Act; Appointment of Successor. (a) Upon the receipt by the Servicer
of a notice of termination pursuant to Section 8.01 or an Opinion of Independent Counsel
pursuant to Section 7.05 to the effect that the Servicer is legally unable to act or to
delegate its duties to a Person which is legally able to act, the Trustee shall
automatically become the successor in all respects to the Servicer in its capacity under
this Agreement and the transactions set forth or provided for herein and shall thereafter be
subject to all the responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Servicer by the terms and provisions hereof; 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 the Trustee or any other successor Servicer; and provided, further, that the
Trustee shall have the right to select a successor Servicer; provided further, however, that
the Trustee shall have no obligation whatsoever with respect to any liability (other than
advances deemed recoverable and not previously made) incurred by the Servicer at or prior to
the time of termination. As compensation therefor, but subject to Section 7.06, the Trustee
shall be entitled to compensation which the Servicer would have been entitled to retain if
the Servicer had continued to act hereunder, except for those amounts due the Servicer as
reimbursement permitted under this Agreement for advances previously made or expenses
previously incurred. Notwithstanding the above, the Trustee may, if it shall be unwilling
so to act, or shall, if it is legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance institution
which is a ▇▇▇▇▇▇ Mae- or ▇▇▇▇▇▇▇ Mac-approved Servicer, and with respect to a successor to
the Servicer only, having a net worth of not less than $10,000,000, as the successor to the
Servicer hereunder in the assumption of all or any part of the responsibilities, duties or
liabilities of the Servicer hereunder; provided, that the Trustee shall obtain a letter from
each Rating Agency that the ratings, if any, on each of the Certificates will not be lowered
as a result of the selection of the successor to the Servicer. Pending appointment of a
successor to the Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on the Mortgage Loans as
it and such successor shall agree; provided, however, that the provisions of Section 7.06
shall apply, the compensation shall not be in excess of that which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, and that such successor
shall undertake and assume the obligations of the Trustee to pay compensation to any third
Person acting as an agent or independent contractor in the performance of servicing
responsibilities hereunder. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Servicer respecting
the Mortgage Loans as provided herein, it shall do so in a separate capacity and not in its
capacity as Trustee and, accordingly, the provisions of Article IX shall be inapplicable to
the Trustee in its duties as the successor to the Servicer in the servicing of the Mortgage
Loans (although such provisions shall continue to apply to the Trustee in its capacity as
Trustee); the provisions of Article VII, however, shall apply to it in its capacity as
successor servicer.
(c) To the extent that the costs and expenses of the Trustee related to any
termination of the Servicer, appointment of a successor Servicer or the transfer and
assumption of servicing by the Trustee with respect to this Agreement (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer as a result of an
event of default by the Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including, but not limited to, all servicing files and all
servicing data and the completion, correction or manipulation of such servicing data as may
be required by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the Mortgage Loans
in accordance with this Agreement) are not fully and timely reimbursed by the terminated
Servicer, the Trustee shall be entitled to reimbursement of such costs and expenses from the
Distribution Account.
Section 8.03 Notification to Certificateholders. Upon any termination or appointment of a
successor to the Servicer, the Trustee shall give prompt written notice thereof to the
Certificate Insurer and the Certificateholders at their respective addresses appearing in
the Certificate Register and to the Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall give prompt written notice thereof to all
Certificateholders, within 60 days after the occurrence of any Event of Default actually
known to a Responsible Officer of the Trustee, unless such Event of Default shall have been
cured, notice of each such Event of Default. The Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 51% of the Trust Fund may, on
behalf of all Certificateholders, waive any default by the Servicer in the performance of
its obligations hereunder and the consequences thereof, except a default in the making of or
the causing to be made any required distribution on the Certificates, which default may only
be waived by Holders of Certificates evidencing Fractional Undivided Interests aggregating
100% of the Trust Fund. Upon any such waiver of a past default, such default shall be
deemed to cease to exist, and any Event of Default arising therefrom shall be deemed to have
been timely remedied for every purpose of this Agreement. No such waiver shall extend to
any subsequent or other default or impair any right consequent thereon except to the extent
expressly so waived. The Trustee shall give notice of any such waiver to the Rating
Agencies and the Certificate Insurer.
Section 8.05 List of Certificateholders. Upon written request of three or more
Certificateholders of record, for purposes of communicating with other Certificateholders
with respect to their rights under this Agreement, the Trustee will afford such
Certificateholders access during business hours to the most recent list of
Certificateholders held by the Trustee.
ARTICLE IX
Concerning the Trustee
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement as duties of the
Trustee. If an Event of Default has occurred and has not been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and subject to
Section 8.02(b) use the same degree of care and skill in their exercise, as a prudent person
would exercise under the circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments which are specifically required to be furnished to the Trustee
pursuant to any provision of this Agreement, the Trustee shall examine them to determine
whether they are in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished hereunder;
provided, further, that the Trustee shall not be responsible for the accuracy or
verification of any calculation provided to it pursuant to this Agreement.
(c) On each Distribution Date, the Trustee shall make monthly distributions and the final
distribution to the Certificateholders from funds in the Distribution Account as provided in
Sections 6.01 and 10.01 herein.
(d) No provision of this Agreement shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or waiver of all
such Events of Default which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of its duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable in its individual capacity for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the directions of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than 25% of the
Trust Fund, if such action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or other
power conferred upon the Trustee under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default or Event of Default unless a Responsible Officer of the Trustee's
Corporate Trust Office shall have actual knowledge thereof. In the absence of such notice,
the Trustee may conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any insufficiency in any Account
held by or in the name of Trustee unless it is determined by a court of competent
jurisdiction that the Trustee's gross negligence or willful misconduct was the primary cause
of such insufficiency (except to the extent that the Trustee is obligor and has defaulted
thereon);
(vi) The Trustee shall not in any way be liable by reason of any insufficiency in any Account
held by the Trustee or any Account held in the name of the Trustee unless it is determined
by a court of competent jurisdiction that the Trustee's gross negligence or willful
misconduct was the primary cause of such insufficiency (except to the extent that the
Trustee is obligor and has defaulted thereon);
(vii) Anything in this Agreement to the contrary notwithstanding, in no event shall the
Trustee be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of action;
(viii) None of the Trustee, the Servicer, the Depositor or the Custodian shall be responsible
for the acts or omissions of the other, it being understood that this Agreement shall not be
construed to render them partners, joint venturers or agents of one another and
(ix) The Trustee shall not be required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it, and none of the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer in accordance with the terms of this Agreement.
(e) All funds received by the Servicer and the Trustee and required to be deposited into any
Account pursuant to this Agreement will be promptly so deposited by the Servicer or the
Trustee, as applicable.
(f) Except for those actions that the Trustee is required to take hereunder, the Trustee
shall not have any obligation or liability to take any action or to refrain from taking any
action hereunder in the absence of written direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee. Except as otherwise provided in
Section 9.01:
(a) The Trustee may rely and shall be protected in acting or refraining from acting in
reliance on any resolution, certificate of the Depositor or the Servicer, certificate of
auditors or any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel and any advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(c) The Trustee shall not be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement, other than its obligation to give notices pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the Certificateholders pursuant to the
provisions of this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby. Nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of his own affairs;
(d) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver
of all Events of Default which may have occurred, the Trustee shall not be liable in its
individual capacity for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(e) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested in writing to do
so by Holders of Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the Trust Fund and provided that the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, reasonably assured to the Trustee, by
the security afforded to it by the terms of this Agreement. The Trustee may require
reasonable indemnity against such expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(f) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent (other than the Custodian) to perform its
custodial functions with respect to the Mortgage Files or paying agent functions under this
Agreement without the express written consent of the Servicer, which consent will not be
unreasonably withheld. The Trustee shall not be liable or responsible for (i) the
misconduct or negligence of any of the Trustee's agents or attorneys or a custodian or
paying agent appointed hereunder by the Trustee with due care and, when required, with the
consent of the Servicer or (ii) any acts or omissions of the Servicer (unless the Trustee
has assumed the obligations of the Servicer pursuant to the provision of this Agreement);
(g) Should the Trustee deem the nature of any action required on its part, other than a
payment or transfer by the Trustee under Section 4.02, to be unclear, the Trustee may
require prior to such action that it be provided by the Depositor with reasonable further
instructions;
(h) The right of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be accountable for other than
its negligence or willful misconduct in the performance of any such act;
(i) The Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted hereunder, except as provided in
Section 9.07; and
(j) Neither the Trustee nor the Servicer shall have any duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of any Mortgage
Loan by the Seller pursuant to this Agreement, the Mortgage Loan Purchase Agreement or the
eligibility of any Mortgage Loan for purposes of this Agreement.
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans. The recitals contained
herein and in the Certificates (other than the signature and countersignature of the Trustee
on the Certificates) shall be taken as the statements of the Depositor, and the Trustee
shall not have any responsibility for their correctness. The Trustee makes no
representation as to the validity or sufficiency of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of any Mortgage Loan
except as expressly provided in Sections 2.02 and 2.05 hereof; provided, however, that the
foregoing shall not relieve the Trustee of the obligation to review the Mortgage Files
pursuant to Sections 2.02 and 2.04. The Trustee's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its capacity as
Trustee and shall not constitute the Certificates an obligation of the Trustee in any other
capacity. The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage Loans. Subject
to the provisions of Section 2.05, the Trustee shall not be responsible for the legality or
validity of this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or instrument of
further assurance, or the validity, priority, perfection or sufficiency of the security for
the Certificates issued hereunder or intended to be issued hereunder. The Trustee shall not
at any time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust Fund or its ability to generate the payments to
be distributed to Certificateholders, under this Agreement. The Trustee shall not have any
responsibility for filing any financing or continuation statement in any public office at
any time or to otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement other than any continuation statements
filed by the Trustee pursuant to Section 3.19.
Section 9.04 Trustee May Own Certificates. The Trustee in its individual capacity or in any
capacity other than as Trustee hereunder may become the owner or pledgee of any Certificates
with the same rights it would have if it were not the Trustee and may otherwise deal with
the parties hereto.
Section 9.05 Trustee's Fees and Expenses. The Trustee will be entitled to all income and
gain realized from any investment of funds in the Distribution Account, pursuant to Article
IV, for the performance of its activities hereunder. In addition, the Trustee will be
entitled to recover from the Distribution Account pursuant to Section 4.04 all reasonable
out-of-pocket expenses, disbursements and advances and the expenses of the Trustee in
connection with any Event of Default, any breach of this Agreement or the Certificate
Insurance Policy or any claim or legal action (including any pending or threatened claim or
legal action) incurred or made by or against the Trustee or in connection with the
administration of the trusts hereunder by the Trustee (including the reasonable
compensation, expenses and disbursements of its counsel) except any such expense,
disbursement or advance as may arise from its negligence or intentional misconduct or which
is the responsibility of the Certificateholders. If funds in the Distribution Account are
insufficient therefor, the Trustee shall recover such expenses from the Depositor. Such
compensation and reimbursement obligation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee. The Trustee and any successor Trustee
shall during the entire duration of this Agreement be a state bank or trust company or a
national banking association organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus and undivided profits of at least $40,000,000 or, in
the case of a successor Trustee, $50,000,000, subject to supervision or examination by
federal or state authority and, in the case of the Trustee, rated "BBB" or higher by S&P
with respect to their long-term rating and rated "BBB" or higher by S&P and "Baa2" or higher
by ▇▇▇▇▇'▇ with respect to any outstanding long-term unsecured unsubordinated debt, and, in
the case of a successor Trustee or successor Trustee other than pursuant to Section 9.10,
rated "A-1" or higher by S&P and rated in one of the two highest long-term debt categories
of, or otherwise acceptable to, ▇▇▇▇▇'▇. If the Trustee publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined capital and
surplus of such corporation shall be deemed to be its total equity capital (combined capital
and surplus) as set forth in its most recent report of condition so published. In case at
any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 9.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 9.08.
Section 9.07 Insurance. The Trustee, at its own expense, shall at all times maintain and
keep in full force and effect: (i) fidelity insurance, (ii) theft of documents insurance
and (iii) forgery insurance (which may be collectively satisfied by a "Financial Institution
Bond" and/or a "Bankers' Blanket Bond"). All such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are customary for insurance typically
maintained by banks or their affiliates which act as custodians for investor-owned mortgage
pools. A certificate of an officer of the Trustee as to the Trustee's compliance with this
Section 9.07 shall be furnished to any Certificateholder upon reasonable written request.
Section 9.08 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the Trust hereby created by
giving written notice thereof to the Depositor and the Servicer, with a copy to the
Certificate Insurer and the Rating Agencies. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Trustee, by written instrument, in triplicate,
one copy of which instrument shall be delivered to the resigning Trustee. If no successor
Trustee shall have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the provisions
of Section 9.06 and shall fail to resign after written request therefor by the Depositor or
if at any time the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee and appoint a successor Trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee so removed, the
successor Trustee and the Certificate Insurer.
(c) The Holders of Certificates evidencing Fractional Undivided Interests aggregating not
less than 51% of the Trust Fund may at any time remove the Trustee and appoint a successor
Trustee by written instrument or instruments, in quintuplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments shall be
delivered to the Depositor, the Servicer and the Trustee so removed and the successor so
appointed. In the event that the Trustee removed by the Holders of Certificates in
accordance with this Section 9.08(c), the Holders of such Certificates shall be responsible
for paying any compensation payable hereunder to a successor Trustee, in excess of the
amount paid hereunder to the predecessor Trustee.
(d) No resignation or removal of the Trustee and appointment of a successor Trustee pursuant
to any of the provisions of this Section 9.08 shall become effective except upon appointment
of and acceptance of such appointment by the successor Trustee as provided in Section 9.09.
As long as the Certificate Insurance Policy is in effect, the Trustee will send a written
notice to the Certificate Insurer of any such resignation, removal or appointment.
Section 9.09 Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 9.08 shall execute, acknowledge
and deliver to the Depositor and to its predecessor Trustee an instrument accepting such
appointment hereunder. The resignation or removal of the predecessor Trustee shall then
become effective and such successor Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee herein. The
predecessor Trustee shall, after its receipt of payment in full of its outstanding fees and
expenses promptly deliver to the successor Trustee all assets and records of the Trust held
by it hereunder, and the Depositor and the predecessor Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor Trustee all such rights, powers, duties
and obligations.
(b) No successor Trustee shall accept appointment as provided in this Section 9.09 unless at
the time of such acceptance such successor Trustee shall be eligible under the provisions of
Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in this Section 9.09,
the successor Trustee shall mail notice of the succession of such Trustee hereunder to all
Certificateholders at their addresses as shown in the Certificate Register, to the
Certificate Insurer and to the Rating Agencies. The Company shall pay the cost of any
mailing by the successor Trustee.
Section 9.10 Merger or Consolidation of Trustee. Any state bank or trust company or national
banking association into which the Trustee may be merged or converted or with which it may
be consolidated or any state bank or trust company or national banking association resulting
from any merger, conversion or consolidation to which the Trustee shall be a party, or any
state bank or trust company or national banking association succeeding to all or
substantially all of the corporate trust business of the Trustee shall be the successor of
the Trustee hereunder, provided such state bank or trust company or national banking
association shall be eligible under the provisions of Section 9.06. Such succession shall
be valid without the execution, delivery of notice or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any
legal requirements of any jurisdiction in which any part of the Trust or property
constituting the same may at the time be located, the Depositor and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee and the Depositor to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or any part of
the Trust, and to vest in such Person or Persons, in such capacity, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 9.11, such powers,
duties, obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a written request so to do, the Trustee shall have the power to make such
appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 9.06 hereunder and no notice to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.11, all rights, powers, duties and obligations conferred or imposed upon the
Trustee and required to be conferred on such co-trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or co-trustee jointly,
except to the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding of title to
the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee may, at any time,
request the Trustee, its agent or attorney-in-fact, with full power and authority, to do any
lawful act under or with respect to this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or be removed,
all of its estates, properties rights, remedies and trusts shall vest in and be exercised by
the Trustee, to the extent permitted by law, without the appointment of a new or successor
Trustee.
(g) No trustee under this Agreement shall be personally liable by reason of any act or
omission of another trustee under this Agreement. The Depositor and the Trustee acting
jointly may at any time accept the resignation of or remove any separate trustee or
co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders; REMIC
Administration.
(a) For federal income tax purposes, the taxable year of each 2005-AR5 REMIC shall be a
calendar year and the Trustee shall maintain or cause the maintenance of the books of each
such 2005-AR5 REMIC on the accrual method of accounting.
(b) The Trustee shall prepare and file or cause to be filed with the Internal Revenue
Service, and the Trustee shall upon the written instruction of the Trustee sign, Federal tax
information returns or elections required to be made hereunder with respect to each 2005-AR5
REMIC, the Trust Fund, if applicable, and the Certificates containing such information and
at the times and in the manner as may be required by the Code or applicable Treasury
regulations, and the Trustee shall furnish to each Holder of Certificates at any time during
the calendar year for which such returns or reports are made such statements or information
at the times and in the manner as may be required thereby, including, without limitation,
reports relating to mortgaged property that is abandoned or foreclosed, receipt of mortgage
interests in kind in a trade or business, a cancellation of indebtedness, interest, original
issue discount and market discount or premium (using a constant prepayment assumption of 25%
CPR). The Trustee will apply for an Employee Identification Number from the IRS under Form
SS-4 or any other acceptable method for all tax entities. In connection with the foregoing,
the Trustee shall timely prepare and file, and the Trustee shall upon the written
instruction of the Trustee sign, IRS Form 8811, which shall provide the name and address of
the person who can be contacted to obtain information required to be reported to the holders
of regular interests in each 2005-AR5 REMIC (the "REMIC Reporting Agent"). The Trustee
shall make elections to treat each 2005-AR5 REMIC as a REMIC (which elections shall apply to
the taxable period ending December 31, 2005 and each calendar year thereafter) in such
manner as the Code or applicable Treasury regulations may prescribe, and as described by the
Trustee. The Trustee shall sign all tax information returns filed pursuant to this
Section and any other returns as may be required by the Code. The Holder of the largest
percentage interest in the Class R Certificates is hereby designated as the "Tax Matters
Person" (within the meaning of Treas. Reg. §§1.860F-4(d)) for each 2005-AR5 REMIC. The
Trustee is hereby designated and appointed as the agent of each such Tax Matters Person.
Any Holder of a Residual Certificate will by acceptance thereof appoint the Trustee as agent
and attorney-in-fact for the purpose of acting as Tax Matters Person for each 2005-AR5 REMIC
during such time as the Trustee does not own any such Residual Certificate. In the event
that the Code or applicable Treasury regulations prohibit the Trustee from signing tax or
information returns or other statements, or the Trustee from acting as agent for the Tax
Matters Person, the Trustee shall take whatever action that in its sole good faith judgment
is necessary for the proper filing of such information returns or for the provision of a tax
matters person, including designation of the Holder of the largest percentage interest in a
Residual Certificate to sign such returns or act as tax matters person. Each Holder of a
Residual Certificate shall be bound by this Section.
(c) The Trustee shall provide upon request and receipt of reasonable compensation, such
information as required in Section 860D(a)(6)(B) of the Code to the Internal Revenue
Service, to any Person purporting to transfer a Residual Certificate to a Person other than
a transferee permitted by Section 5.05(b), and to any regulated investment company, real
estate investment trust, common trust fund, partnership, trust, estate, organization
described in Section 1381 of the Code, or nominee holding an interest in a pass-through
entity described in Section 860E(e)(6) of the Code, any record holder of which is not a
transferee permitted by Section 5.05(b) (or which is deemed by statute to be an entity with
a disqualified member).
(d) The Trustee shall prepare and file or cause to be filed, and the Trustee shall sign, any
state income tax returns required under Applicable State Law with respect to each REMIC or
the Trust Fund.
(e) Notwithstanding any other provision of this Agreement, the Trustee shall comply with all
federal withholding requirements respecting payments to Certificateholders of interest or
original issue discount on the Mortgage Loans, that the Trustee reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report to such
Certificateholders, indicate such amount withheld.
(f) The Trustee agrees to indemnify the Trust Fund and the Depositor for any taxes and costs
including, without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Servicer, as a result of a breach of the Trustee's
covenants set forth in this Section 9.12.
ARTICLE X
Termination
Section 10.01 Termination Upon Repurchase by the Depositor or its Designee or Liquidation of
the Mortgage Loans.
(a) Subject to Section 10.02, the respective obligations and responsibilities of the
Depositor, the Trustee and the Servicer created hereby, other than the obligation of the
Trustee to make payments to Certificateholders as hereinafter set forth shall terminate upon:
(i) the repurchase by or at the direction of the Depositor or its designee of all of the
Mortgage Loans and all related REO Property remaining in the Trust at a price (the
"Termination Purchase Price") equal to the sum of (a) 100% of the Outstanding Principal
Balance of each Mortgage Loan (other than a Mortgage Loan related to REO Property) as of the
date of repurchase, net of the principal portion of any unreimbursed Monthly Advances on the
Mortgage Loans unpaid to, but not including, the first day of the month of repurchase, (b)
the appraised value of any related REO Property, less the good faith estimate of the
Depositor of liquidation expenses to be incurred in connection with its disposal thereof
(but not more than the Outstanding Principal Balance of the related Mortgage Loan, together
with interest at the applicable Mortgage Interest Rate accrued on that balance but unpaid
to, but not including, the first day of the month of repurchase), such appraisal to be
calculated by an appraiser mutually agreed upon by the Depositor and the Trustee at the
expense of the Depositor, (c) unreimbursed out-of pocket costs of the Servicer, including
unreimbursed servicing advances and the interest portion of any unreimbursed Monthly
Advances, made on the Mortgage Loans prior to the exercise of such repurchase right, (d) any
costs and damages incurred by the Trust in connection with any violation of any predatory or
abusive lending laws with respect to a Mortgage Loan, and (e) any unreimbursed costs and
expenses of the Servicer, the Custodian and the Trustee payable pursuant to Section 9.05 or
Section 7.04(c);
(ii) the later of the making of the final payment or other liquidation, or any advance with
respect thereto, of the last Mortgage Loan, remaining in the Trust Fund or the disposition
of all property acquired with respect to any Mortgage Loan; provided, however, that in the
event that an advance has been made, but not yet recovered, at the time of such termination,
the Person having made such advance shall be entitled to receive, notwithstanding such
termination, any payments received subsequent thereto with respect to which such advance was
made; or
(iii) the payment to the Certificateholders of all amounts required to be paid to them
pursuant to this Agreement.
No such purchase by the Depositor or its designee under Subsection 10.01(a)(i) will
be permitted without the consent of the Certificate Insurer if such repurchase would cause a
draw on the Certificate Insurance Policy to be made or if any amounts due to the Certificate
Insurer would remain unreimbursed on the final Distribution Date.
Such designee of the Depositor, if it is not an affiliate of the Depositor, shall be
deemed to represent that one of the following will be true and correct: (i) the exercise of
the optional termination right set forth in Section 10.01(a)(i) shall not result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code or (ii) such
designee is (A) not a party in interest with respect to any Plan and (B) is not a "benefit
plan investor" (other than a plan sponsored or maintained by such designee, provided that no
assets of such plan are invested or deemed to be invested in the Certificates). If the
holder of the option is unable to exercise such option by reason of the preceding sentence,
then the Depositor may exercise such option.
(b) In no event, however, shall the Trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of St. James's, living on the date of this
Agreement.
(c) (i) The right of the Depositor or its designee to repurchase all the assets of the Trust
Fund described in Section 10.01(a)(i) above shall be exercisable only if (i) the Scheduled
Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10%
of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel
addressed to the Depositor and the Trustee has determined that the REMIC status of any
2005-AR5 REMIC has been lost or that a substantial risk exists that such REMIC status will
be lost for the then-current taxable year. At any time thereafter, in the case of (i) or
(ii) above, the Depositor may elect to terminate any 2005-AR5 REMIC at any time, and upon
such election, the Depositor or its designee, shall purchase in accordance with Section
10.01(a)(i) above all the assets of the Trust Fund.
(d) The Trustee shall give notice of any termination to the Certificateholders, with a copy
to the Servicer, the Certificate Insurer and the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Trustee for payment of the
final distribution and cancellation. Such notice shall be given by letter, mailed not
earlier than the 15th day and not later than the 25th day of the month next preceding the
month of such final distribution, and shall specify (i) the Distribution Date upon which
final payment of the Certificates will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office of the Trustee therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the Corporate Trust Office of the Trustee therein specified.
(e) If the option of the Depositor to repurchase or cause the repurchase of all assets of the
Trust Fund described in Section 10.01(a)(i) above is exercised, the Depositor and/or its
designee shall deliver to the Trustee for deposit in the Distribution Account, by the
Business Day prior to the applicable Distribution Date, an amount equal to the Termination
Purchase Price. Upon presentation and surrender of the Certificates by the
Certificateholders, the Trustee shall distribute to the Certificateholders from amounts then
on deposit in the Distribution Account an amount determined as follows: with respect to each
Certificate (other than the Class R Certificates, Class R-X Certificates and Class XP
Certificates), the outstanding Current Principal Amount, plus with respect to each
Certificate (other than the Class R Certificates, Class R-X Certificates and Class XP
Certificates), one month's interest thereon at the applicable Pass-Through Rate; and with
respect to the Class R Certificates and the Class XP Certificates, the percentage interest
evidenced thereby multiplied by the difference, if any, between the above described
repurchase price and the aggregate amount to be distributed to the Holders of the
Certificates (other than the Class R Certificates, Class -X Certificates and Class XP
Certificates). If the proceeds with respect to the Mortgage Loans are not sufficient to pay
all of the Certificates in full (other than the Class R Certificates, Class R-X Certificates
and Class XP Certificates), any such deficiency will be allocated first, to the Class B
Certificates, and then to the Class M Certificates, in inverse order of their numerical
designation, and then to the Senior Certificates, on a pro rata basis. Upon deposit of the
required repurchase price and following such final Distribution Date, the Trustee shall
release promptly (or cause the Custodian to release) to Depositor and/or its designee the
Mortgage Files for the remaining applicable Mortgage Loans, and the Accounts with respect
thereto shall terminate, subject to the Trustee's obligation to hold any amounts payable to
the Certificateholders in trust without interest pending final distributions pursuant to
Section 10.01(g). Any other amounts remaining in the Accounts will belong to the Depositor.
(f) In the event that this Agreement is terminated by reason of the payment or liquidation of
all Mortgage Loans or the disposition of all property acquired with respect to all Mortgage
Loans under Section 10.01(a)(ii) above, the Servicer shall deliver to the Trustee for
deposit in the Distribution Account all distributable amounts remaining in the Custodial
Account. Upon the presentation and surrender of the Certificates, the Trustee shall
distribute to the remaining Certificateholders, in accordance with their respective
interests, all distributable amounts remaining in the Distribution Account. Upon deposit by
the Servicer of such distributable amounts, and following such final Distribution Date, the
Trustee shall release promptly to the Depositor or its designee the Mortgage Files for the
remaining Mortgage Loans, and the Custodial Account and the Distribution Account shall
terminate, subject to the Trustee's obligation to hold any amounts payable to the
Certificateholders in trust without interest pending final distributions pursuant to this
Section 10.01(f).
(g) If not all of the Certificateholders shall surrender their Certificates for cancellation
within six months after the time specified in the above-mentioned written notice, the
Trustee shall give a second written notice to the remaining Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice, not all the Certificates shall have
been surrendered for cancellation, the Trustee may take appropriate steps, or appoint any
agent to take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the funds and
other assets which remain subject to this Agreement.
Section 10.02 Additional Termination Requirements. (a) If the option of the Depositor to
repurchase all the Mortgage Loans under Section 10.01(a)(i) above is exercised, the Trust
Fund and each 2005-AR5 REMIC shall be terminated in accordance with the following additional
requirements, unless the Trustee has been furnished with an Opinion of Counsel addressed to
the Trustee and the Certificate Insurer (which opinion shall not be at the expense of the
Trustee or the Certificate Insurer) to the effect that the failure of the Trust to comply
with the requirements of this Section 10.02 will not (i) result in the imposition of taxes
on "prohibited transactions" as defined in Section 860F of the Code on each 2005-AR5 REMIC
or (ii) cause any 2005-AR5 REMIC to fail to qualify as a 2005-AR5 REMIC at any time that any
Regular Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, at the written direction of
Depositor, the Trustee, as agent for the respective Tax Matters Persons, shall adopt
a plan of complete liquidation of each 2005-AR5 REMIC in the case of a termination
under Section 10.01(a)(i). Such plan, which shall be provided to the Trustee by
Depositor, shall meet the requirements of a "qualified liquidation" under Section
860F of the Code and any regulations thereunder.
(ii) the Depositor shall notify the Trustee at the commencement of such 90-day liquidation
period and, at or prior to the time of making of the final payment on the
Certificates, the Trustee shall sell or otherwise dispose of all of the remaining
assets of the Trust Fund in accordance with the terms hereof; and
(iii) at or after the time of adoption of such a plan of complete liquidation of any 2005-AR5
REMIC and at or prior to the final Distribution Date, the Trustee shall sell for cash
all of the assets of the Trust to or at the direction of the Depositor, and each
2005-AR5 REMIC, shall terminate at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof hereby (i) agree to
adopt such a plan of complete liquidation of the related 2005-AR5 REMIC upon the written
request of the Depositor, and to take such action in connection therewith as may be
reasonably requested by the Depositor and (ii) appoint the Depositor as their
attorney-in-fact, with full power of substitution, for purposes of adopting such a plan of
complete liquidation. The Trustee shall adopt such plan of liquidation by filing the
appropriate statement on the final tax return of each 2005-AR5 REMIC. Upon complete
liquidation or final distribution of all of the assets of the Trust Fund, the Trust Fund and
each 2005-AR5 REMIC shall terminate.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Intent of Parties. The parties intend that each 2005-AR5 REMIC shall be
treated as a REMIC for federal income tax purposes and that the provisions of this Agreement
should be construed in furtherance of this intent. Notwithstanding any other express or
implied agreement to the contrary, the Seller, the Servicer, the Trustee, the Depositor,
each recipient of the related Prospectus Supplement and, by its acceptance thereof, each
holder of a Certificate, agrees and acknowledges that each party hereto has agreed that each
of them and their employees, representatives and other agents may disclose, immediately upon
commencement of discussions, to any and all persons the tax treatment and tax structure of
the Certificates and the 2005-AR5 REMICs, the transactions described herein and all
materials of any kind (including opinions and other tax analyses) that are provided to any
of them relating to such tax treatment and tax structure except where confidentiality is
reasonably necessary to comply with the securities laws of any applicable jurisdiction. For
purposes of this paragraph, the terms "tax treatment" and "tax structure" have the meanings
set forth in Treasury Regulation Sections 1.6011-4(c), 301.6111-2(c) and 301.6112-1(d).
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Company, the Depositor, the
Servicer and the Trustee, without notice to or the consent of any of the Certificateholders
and, with respect to any amendment that adversely affects the interests of any of the
Holders of the Insured Certificates or the Certificate Insurer, with the prior written
consent of the Certificate Insurer, to (i) cure any ambiguity, (ii) correct or supplement
any provisions herein that may be defective or inconsistent with any other provisions
herein, (iii) conform any provisions herein to the provisions in the Prospectus, (iv) comply
with any changes in the Code or (v) make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the provisions
of this Agreement; provided, however, that with respect to clauses (iv) and (v) of this
Section 11.02(a), such action shall not, as evidenced by an Opinion of Independent Counsel,
addressed to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; provided, further, that with respect to clauses (iv) and (v) of this
Section 11.02(a), the Trustee may request an Opinion of Independent Counsel, addressed to
the Trustee (but not at the expense of the Trustee), to the effect that such amendment will
not cause any REMIC created under this Agreement to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(b) This Agreement may also be amended from time to time by the Company, the Servicer, the
Depositor and the Trustee, with the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 51% of the Trust Fund or of the
applicable Class or Classes, if such amendment affects only such Class or Classes, for the
purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding, or (iii) cause any 2005-AR5 REMIC to fail to qualify as a
REMIC for federal income tax purposes, as evidenced by an Opinion of Independent Counsel
addressed to the Trustee which shall be provided to the Trustee other than at the Trustee's
expense. Notwithstanding any other provision of this Agreement, for purposes of the giving
or withholding of consents pursuant to this Section 11.02(b), Certificates registered in the
name of or held for the benefit of the Depositor, the Servicer or the Trustee or any
Affiliate thereof shall be entitled to vote their Fractional Undivided Interests with
respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Trustee shall furnish a copy of
such amendment or written notification of the substance of such amendment to each
Certificateholder and the Trustee, and the Trustee shall provide a copy of such amendment or
notice to the Certificate Insurer and the Rating Agencies.
(d) In the case of an amendment under Section 11.02(b) above, it shall not be necessary for
the Certificateholders to approve the particular form of such an amendment. Rather, it
shall be sufficient if the Certificateholders approve the substance of the amendment. The
manner of obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee
may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to the Trustee stating that the
execution of such amendment is authorized or permitted by this Agreement. The Trustee may,
but shall not be obligated to, enter into any such amendment which affects the Trustee's
rights, duties or immunities under this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by applicable law, this
Agreement is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording office or
elsewhere. The Depositor shall effect such recordation, at the expense of the Trust upon
the request in writing of a Certificateholder, but only if such direction is accompanied by
an Opinion of Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and beneficially affect
the interests of the Certificateholders and the Certificate Insurer or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate this Agreement or
the Trust, nor entitle such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or winding up of
the Trust, nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders shall have any
right to vote or in any manner otherwise control the operation and management of the Trust,
or the obligations of the parties hereto, nor shall anything herein set forth, or contained
in the terms of the Certificates, be construed so as to establish the Certificateholders
from time to time as partners or members of an association; nor shall any Certificateholders
be under any liability to any third Person by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this Agreement to
institute any suit, action or proceeding in equity or at law upon, under or with respect to
this Agreement against the Depositor, the Trustee, the Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the Trustee a
written notice of a continuing default, as herein provided, (ii) the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund
shall have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs and expenses and liabilities to be
incurred therein or thereby, and (iii) the Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any provision of this
Agreement to affect the rights of any other Certificateholders or to obtain or seek to
obtain priority or preference over any other such Certificateholder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
(e) By accepting its Insured Certificate, each Holder of an Insured Certificate agrees that,
unless a Certificate Insurer Default exists and is continuing, the Certificate Insurer shall
have the right to exercise all rights of the Holders of the Insured Certificates under this
Agreement (other than the right to receive distributions on the Insured Certificates)
without any further consent of the Holders of the Insured Certificates and the Holders of
the Insured Certificates shall exercise any such rights only upon the written consent of the
Certificate Insurer; provided, however, each Holder of an Insured Certificate and the
Certificate Insurer will have the right to receive statements and reports hereunder.
Notwithstanding the foregoing, the Certificate Insurer shall have no power without the
consent of the Owner of each Certificate affected thereby to: (i) reduce in any manner the
amount of, or delay the timing of, distributions of principal or interest required to be
made hereunder or reduce the Percentage Interest of the Holders of the Insured Certificates
or the Pass-Through Rate with respect to any of the Insured Certificates; (ii) reduce the
required Fractional Undivided Interest specified in Section 11.02 which is required to amend
this Agreement; (iii) create or permit the creation of any lien against any part of the
Trust Fund; (iv) modify any provision in any way which would permit an earlier retirement of
the Insured Certificates; or (v) amend this sentence.
(f) The Certificate Insurer is an intended third-party beneficiary of this
Agreement with respect to the rights of the Classes of Insured Certificates. Any right
conferred to the Certificate Insurer shall be suspended after the occurrence and during the
continuation of a Certificate Insurer Default. During any period of suspension, the
Certificate Insurer's rights hereunder shall vest in the Holders of the Insured Certificates
(to the extent such Holders otherwise has such rights hereunder). At such time as the
Current Principal Amount of the Insured Certificates has been reduced to zero and the
Certificate Insurer has been reimbursed for all amounts to which it is entitled hereunder
pursuant to Section 6.01, the Certificate Insurer's rights hereunder shall terminate.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such
Certificateholders in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Depositor, if made in the manner provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute sufficient proof of
his or her authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership or other writing
on such Certificates, except an endorsement in accordance with Section 5.02 made on a
Certificate presented in accordance with Section 5.04) shall be proved by the Certificate
Register, and none of the Trustee, the Depositor, the Servicer nor any successor to any such
parties shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action of
the holder of any Certificate shall bind every future holder of the same Certificate and the
holder of every Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or suffered to be done
by the Trustee, the Depositor, the Servicer or any successor to any such party in reliance
thereon, whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of Certificates evidencing
Fractional Undivided Interests have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Certificates owned by the Trustee, the Depositor, the
Servicer or any Affiliate thereof shall be disregarded, except as otherwise provided in
Section 11.02(b) and except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver,
only Certificates which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Certificates which have been pledged in good faith to the Trustee,
the Depositor, the Servicer or any Affiliate thereof may be regarded as outstanding if the
pledgor establishes to the satisfaction of the Trustee the pledgor's right to act with
respect to such Certificates and that the pledgor is not an Affiliate of the Trustee, the
Depositor, or the Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO
EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER) AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in writing and shall be
deemed given when delivered at (including delivery by facsimile) or mailed by registered
mail, return receipt requested, postage prepaid, or by recognized overnight courier, to
(i) in the case of the Depositor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Vice President-Servicing, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as
may hereafter be furnished to the other parties hereto in writing; (ii) in the case of the
Trustee, at its Corporate Trust Office, or such other address as may hereafter be furnished
to the other parties hereto in writing; (iii) in the case of the Company, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Servicing, telecopier number:
(▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as may hereafter be furnished to the other parties
hereto in writing; (iv) in the case of the Servicer, P Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: GreenPoint Mortgage Funding
2005-AR5, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be
furnished to the other parties hereto in writing; (v) in the case of the Rating Agencies,
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Standard &
Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; or (vi) in the case of the Certificate Insurer, Ambac Assurance Corporation, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: GreenPoint 2005-AR5 (telecopy
number 212-208-3547), or such other address or telecopy number as may be furnished to the
other parties hereto in writing. Any notice delivered to the Depositor, the Servicer or the
Trustee under this Agreement shall be effective only upon receipt. Any notice required or
permitted to be mailed to a Certificateholder, unless otherwise provided herein, shall be
given by first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given when mailed, whether or not
the Certificateholder receives such notice.
Section 11.08 Severability of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severed from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section headings herein are for
convenience of reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more counterparts each
of which when so executed and delivered shall be an original but all of which together shall
constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The article and section headings herein are for
convenience of reference only, and shall not limited or otherwise affect the meaning
hereof. The Trustee shall promptly provide notice to each Rating Agency with respect to
each of the following of which a Responsible Officer of the Trustee has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee;
4. The repurchase or substitution of any Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Custodial Account or the Distribution
Account.
[PSA]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC., as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EMC MORTGAGE CORPORATION, as Servicer and
Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
Accepted and Agreed as to
Sections 2.01, 2.02, 2.03, 2.04, 2.07 and 9.09(c)
in its capacity as Seller
EMC MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of October, 2005 before me, a notary public in and for said State,
personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, known to me to be a Vice President of Structured
Asset Mortgage Investments II Inc., the corporation that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
CITY OF BALTIMORE )
On the 31st day of October, 2005 before me, a notary public in and for said State,
personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Assistant Vice President of ▇▇▇▇▇
Fargo Bank, National Association, the entity that executed the within instrument, and also
known to me to be the person who executed it on behalf of said entity, and acknowledged to
me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 31st day of October, 2005 before me, a notary public in and for said State,
personally appeared ▇▇▇▇▇ ▇▇▇▇, known to me to be an authorized signatory of EMC Mortgage
Corporation, the corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 31st day of October, 2005 before me, a notary public in and for said State,
personally appeared ▇▇▇▇▇ ▇▇▇▇, known to me to be an authorized signatory of EMC Mortgage
Corporation, the corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇
Notary Public
[Notarial Seal]
1
CALCULATION OF REMIC I Y PRINCIPAL REDUCTION AMOUNTS
REMIC I Y Principal Reduction Amounts: For any Distribution Date the amounts by which the
Uncertificated Principal Balances of the REMIC I Regular Interests Y-1, Y-2, Y-3 and Y-4, respectively, will
be reduced on such Distribution Date by the allocation of Realized Losses and the distribution of principal,
determined as follows:
First for each of Group I, Group II, Group III and Group IV determine the weighted average
pass-through rate for that Group for distributions of interest that will be made on the next succeeding
Distribution Date (the "Group Interest Rate"). The Principal Reduction Amount for each of the REMIC I
Regular Interests Y will be determined pursuant to the "Generic solution for the REMIC I Y Principal
Reduction Amounts" set forth below (the "Generic Solution") by making identifications among the actual Groups
and their related REMIC I Regular Interests Y and Z and weighted average pass-through rates and the Groups
named in the Generic Solution and their related REMIC I Regular Interests Y and Z as follows:
A. Determine which Group has the lowest Group Interest Rate. That Group will be identified
with Group AA and the REMIC I Regular Interests Y and Z related to that Group will be respectively identified
with the REMIC I Regular Interests Y-aa and Z-aa. The Group Interest Rate for that Group will be identified
with J%. If two or more Groups have the lowest Group Interest Rate pick one for this purpose, subject to the
restriction that each Group may be picked only once in the course of any such selections pursuant to
paragraphs A through D or this definition.
B. Determine which Group has the second lowest Group Interest Rate. That Group will be
identified with Group BB and the REMIC I Regular Interests Y and Z related to that Group will be respectively
identified with the REMIC I Regular Interests Y-bb and Z-bb. The Group Interest Rate for that Group will be
identified with K%. If two or more Groups have the second lowest Group Interest Rate pick one for this
purpose, subject to the restriction that each Group may be picked only once in the course of any such
selections pursuant to paragraphs A through D or this definition.
C. Determine which Group has the third lowest Group Interest Rate. That Group will be
identified with Group CC and the REMIC I Regular Interests Y and Z related to that Group will be respectively
identified with the REMIC I Regular Interests Y-cc and Z-cc. The Group Interest Rate for that Group will be
identified with L%. If two or more Groups have the third lowest Group Interest Rate pick one for this
purpose, subject to the restriction that each Group may be picked only once in the course of any such
selections pursuant to paragraphs A through D or this definition.
D. Determine which Group has the fourth lowest Group Interest Rate. That Group will be
identified with Group DD and the REMIC I Regular Interests Y and Z related to that Group will be respectively
identified with the REMIC I Regular Interests Y-dd and Z-dd. The Group Interest Rate for that Group will be
identified with M%. If two or more Groups have the fourth lowest Group Interest Rate pick one for this
purpose, subject to the restriction that each Group may be picked only once in the course of any such
selections pursuant to paragraphs A through D or this definition.
Second, apply the Generic Solution set forth below to determine the REMIC I Regular Interest Y
Principal Reduction Amounts for the Distribution Date using the identifications made above.
Generic Solution for the REMIC I Y Principal Reduction Amounts : For any Distribution Date, the
amounts by which the Principal Balances of the Y-aa, Y-bb, Y-cc and Y-dd Regular Interests, 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:
PAAB = the Subordinate Component Balance for Group AA after the allocation of Realized Losses and
distributions of principal on such Distribution Date.
PBBB = the Subordinate Component Balance for Group BB after the allocation of Realized Losses and
distributions of principal on such Distribution Date.
PCCB = the Subordinate Component Balance for Group CC after the allocation of Realized Losses and
distributions of principal on such Distribution Date.
PDDB = the Subordinate Component Balance for Group DD after the allocation of Realized Losses and
distributions of principal on such Distribution Date.
R = the Remittance Rate on the Subordinate Certificates
= (J%PAAB + K%PBBB + L%PCCB + M%PDDB)/( PAAB + PBBB + PCCB + PDDB)
R1 = the weighted average of the Remittance Rates on the Group AA-L, Group BB-L and Group CC-L Regular
Interests, which
= (J%(Pjj - ΔPjj) + K%(Pkk - ΔPkk) + M%(Pll - ΔPll))/(Pjj - ΔPjj + Pkk - ΔPkk + Pll - ΔPll)
R2 = the weighted average of the Remittance Rates on the Group BB-L, Group CC-L and Group DD-L Regular
Interests, which
= (K%(Pkk - ΔPkk) + L%(Pll - ΔPll) + M%(Pmm - ΔPmm))/(Pkk - ΔPkk + Pll - ΔPll + Pmm - ΔPmm)
R3 = the weighted average of the Remittance Rates on the Group AA-L and Group BB-L Regular Interests,
which
= (J%(Pjj - ΔPjj) + K%(Pkk - ΔPkk))/(Pjj - ΔPjj + Pkk - ΔPkk)
R4 = the weighted average of the Remittance Rates on the Group CC-L and Group DD-L Regular Interests, which
= (L%(Pll - ΔPll) + M%(Pmm - ΔPmm))/(Pll - ΔPll + Pmm - ΔPmm)
r1 = the weighted average of the REMIC I Regular Interest Y-aa, REMIC I Regular Interest Y-bb and REMIC I
Regular Interest Y-cc Remittance Rates
= (J% Yjj + K% Ykk + L% Yll)/(Yjj + Ykk + Yll)
r2 = the weighted average of the REMIC I Regular Interest Y-bb, REMIC I Regular Interest Y-cc and REMIC I
Regular Interest Y-dd Remittance Rates
= (K% Ykk + L% Yll + M% Ymm)/(Ykk + Yll + Ymm)
r3 = the weighted average of the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Y-bb Remittance
Rates
= (J% Yjj + K% Ykk)/(Yjj + Ykk)
r4 = the weighted average of the REMIC I Regular Interest Y-cc and REMIC I Regular Interest Y-dd Remittance
Rates
= (L% Yll + M% Ymm)/(Yll + Ymm)
Yjj = the principal balance of the REMIC I Regular Interest Y-aa after distributions on the prior
Distribution Date.
Ykk = the principal balance of the REMIC I Regular Interest Y-bb after distributions on the prior
Distribution Date.
Yll = the principal balance of the REMIC I Regular Interest Y-cc after distributions on the prior
Distribution Date.
Ymm = the principal balance of the REMIC I Regular Interest Y-dd after distributions on the prior
Distribution Date.
ΔYjj = the REMIC I Regular Interest Y-aa Principal Reduction Amount.
ΔYkk = the REMIC I Regular Interest Y-bb Principal Reduction Amount.
ΔYll = the REMIC I Regular Interest Y-cc Principal Reduction Amount.
ΔYmm = the REMIC I Regular Interest Y-dd Principal Reduction Amount.
Pjj = the aggregate principal balance of the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Z-aa
after distributions on the prior Distribution Date, which is equal to the aggregate principal balance
of the Group AA Loans reduced by the portion, if any, of the Principal Balance derived from Group AA
Loans of Component I of the Class R Certificate.
Pkk = the aggregate principal balance of the REMIC I Regular Interest Y-bb and REMIC I Regular Interest Z-bb
after distributions on the prior Distribution Date, which is equal to the aggregate principal balance
of the Group BB Loans reduced by the portion, if any, of the Principal Balance derived from Group BB
Loans of Component I of the Class R Certificate.
Pll = the aggregate principal balance of the REMIC I Regular Interest Y-cc and REMIC I Regular Interest Z-cc
after distributions on the prior Distribution Date, which is equal to the aggregate principal balance
of the Group CC Loans reduced by the portion, if any, of the Principal Balance derived from Group CC
Loans of Comoponent I of the Class R Certificate.
Pmm = the aggregate principal balance of the REMIC I Regular Interest Y-dd and REMIC I Regular Interest Z-dd
after distributions on the prior Distribution Date, which is equal to the aggregate principal balance
of the Group DD Loans reduced by the portion, if any, of the Principal Balance derived from Group DD
Loans of Component I of the Class R Certificate.
ΔPjj = the aggregate principal reduction resulting on such Distribution Date on the Group AA Loans as
a result of principal distributions (exclusive of any amounts distributed pursuant to clauses (e)(i)
or (e)(ii) of the definition of REMIC I Distribution Amount) to be made, Net Negative Amortization to
be allocated and realized losses to be allocated on such Distribution Date, reduced by the portion, if
any, of such reduction allocable to Component I of the Class R Certificate, which is equal to the
aggregate of the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Z-aa Principal Reduction
Amounts.
ΔPkk= the aggregate principal reduction resulting on such Distribution Date on the Group BB Loans as
a result of principal distributions (exclusive of any amounts distributed pursuant to clauses (e)(i)
or (e)(ii) of the definition of REMIC I Distribution Amount) to be made and realized losses to be
allocated on such Distribution Date, reduced by the portion, if any, of such reduction allocable to
Component I of the Class R Certificate, which is equal to the aggregate of the REMIC I Regular
Interest Y-bb and REMIC I Regular Interest Z-bb Principal Reduction Amounts.
ΔPll = the aggregate principal reduction resulting on such Distribution Date on the Group CC Loans as
a result of principal distributions (exclusive of any amounts distributed pursuant to clauses (e)(i)
or (e)(ii) of the definition of REMIC I Distribution Amount) to be made and realized losses to be
allocated on such Distribution Date, reduced by the portion, if any, of such reduction allocable to
Component I of the Class R Certificate, which is equal to the aggregate of the REMIC I Regular
Interest Y-cc and REMIC I Regular Interest Z-cc Principal Reduction Amounts.
ΔPmm = the aggregate principal reduction resulting on such Distribution Date on the Group DD Loans as
a result of principal distributions (exclusive of any amounts distributed pursuant to clauses (e)(i)
or (e)(ii) of the definition of REMIC I Distribution Amount) to be made and realized losses to be
allocated on such Distribution Date, reduced by the portion, if any, of such reduction allocable to
Component I of the Class R Certificate, which is equal to the aggregate of the REMIC I Regular
Interest Y-dd and REMIC I Regular Interest Z-dd Principal Reduction Amounts.
α = .0005
γ1 = (R - R1)/(M% - R). If R=>L%, γ1 is a non-negative number unless its denominator is zero,
in which event it is undefined.
γ2 = (R - J%)/(R2 - R). If R<K%, γ2 is a non-negative number.
γ3 = (R - R3)/(R4 - R). If K%<=R<=L%, γ3 is a non-negative number unless its denominator is
zero, in which case it is undefined.
If γ1 is undefined, ΔYjj = Yjj, ΔYkk = Ykk, ΔYll = Yll, and ΔYmm =
(Ymm/Pmm)ΔPmm.
If γ2 is zero, ΔYjj = (Yjj/Pjj)ΔPjj, ΔYkk = Ykk, ΔYll = Yll and ΔYmm =
Ymm.
If K%<=R<=L% and γ3 is undefined, ΔYjj = Yjj, ΔYkk = Ykk, ΔYmm = Ymm, and ΔYll
= (Yll/Pll)ΔPll.
If K%<=R<=L% and γ3 is zero, ΔYkk = (Ykk/Pkk)ΔPkk, ΔYjj = Yjj, ΔYll = Yll and
ΔYmm = Ymm.
In the remaining situations, ΔYjj, ΔYkk, ΔYll and ΔYmm shall be defined as follows:
I. If R=>L%, make the following additional definitions:
δYjj = 0, if R1< r1;
(R1- r1)( Yjj + Ykk + Yll)Yjj/((R1 - J%)Yjj + (R1 - K%)Ykk), if R1=> r1 and R1=>K%; and
(R1- r1)( Yjj + Ykk + Yll)/(R1 - J%), if R1=> r1 and R1<K%;
δYkk = 0, if R1< r1 and R1=>K%;
(R1- r1)( Yjj + Ykk + Yll)Ykk/((R1 - K%)Ykk + (R1 - L%)Yll), if R1< r1 and R1<K%;
(R1- r1)( Yjj + Ykk + Yll)Ykk/((R1 - J%)Yjj + (R1 - K%)Ykk), if R1=> r1 and R1=>K%; and
0, if R1=> r1 and R1<K%; and
δYll = (R1- r1)( Yjj + Ykk + Yll)/(R1 - L%), if R1< r1 and R1=>K%;
(R1- r1)( Yjj + Ykk + Yll)Yll/((R1 - K%)Ykk + (R1 - L%)Yll), if R1< r1 and R1<K%; and
0, if R1=> r1.
▇▇▇, ▇▇▇▇, and δYll are numbers between Yjj and 0, Ykk and 0, and Yll and 0, respectively,
such that
(J%(Yjj - δYjj) + K%( Ykk.- δYkk) + L%( Yll.- δYll))/(Yjj - δYjj + Ykk.-
δYkk + Yll.- δYll) = R1.
Y5 = Yjj - δYjj + Ykk.- δYkk + Yll.- δYll
P5 = Pjj + Pkk + Pll.
ΔP5 = ΔPjj + ΔPkk + ΔPll.
ΔY5 = ΔYjj - δYjj + ΔYkk.- δYkk + ΔYll.- δYll
1. If Ymm - α(Pmm - ΔPmm) => 0, Y5- α(P5 - ΔP5) => 0, and γ1(P5 - ΔP5) <
(Pmm - ΔPmm), ΔYmm = Ymm - αγ1(P5 - ΔP5) and
ΔY5 = Y5 - α(P5 - ΔP5).
2. If Ymm - α(Pmm - ΔPmm) => 0, Y5 - α(P5 - ΔP5) => 0, and γ1(P5 - ΔP5)
=> (Pmm - ΔPmm), ΔYmm = Ymm - α(Pmm - ΔPmm) and
ΔY5 = Y5 - (α/γ1)(Pmm - ΔPmm).
3. If Ymm - α(Pmm - ΔPmm) < 0, Y5 - α(P5 - ΔP5) => 0, and
Y5 - α(P5 - ΔP5) => Y5 - (Ymm/γ1), ΔYmm = Ymm - αγ1(P5 - ΔP5)
and ΔY5 = Y5 - α(P5 - ΔP5).
4. If Ymm - α(Pmm - ΔPmm) < 0, Y5 - (Ymm/γ1) => 0, and
Y5 - α(P5 - ΔP5) <= Y5 - (Ymm/γ1), ΔYmm = 0 and ΔY5 = Y5 - (Ymm/γ1).
5. If Y5 - α(P5 - ΔP5) < 0, Y5 - (Ymm/γ1) < 0, and
Ymm - α(Pmm - ΔPmm) <= Ymm - (γ1Y5), ΔYmm = Ymm - (γ1Y5) and ΔY5 = 0.
6. If Y5 - α(P5 - ΔP5) < 0, Ymm - α(Pmm - ΔPmm) => 0, and
Ymm - α(Pmm - ΔPmm) => Ymm - (γ1Y5), ΔYmm = Ymm - α(Pmm - ΔPmm) and
ΔY5 = Y5 - (α/γ1)(Pmm - ΔPmm).
ΔYjj = δYjj + [(Yjj - δYjj)/(Yjj - δYjj + Ykk - δYkk + Yll - δYll)] ΔY5
ΔYkk = δYkk + [(Ykk - δYkk)/(Yjj - δYjj + Ykk - δYkk + Yll - δYll)]ΔY5
ΔYll = δYll + [(Yll - δYll)/(Yjj - δYjj + Ykk - δYkk + Yll - δYll)]ΔY5
The purpose of the foregoing definitional provisions together with the related provisions
allocating Realized Losses and defining the REMIC I Regular Interest Y and REMIC I Regular Interest Z
Principal Distribution Amounts is to accomplish the following goals in the following order of priority:
1. Making the ratio of Ymm to Y5 equal to γ1 after taking account of the allocation Realized Losses
and the distributions that will be made through end of the Distribution Date to which such provisions
relate and assuring that the Principal Reduction Amount for each of the Y-aa, Y-bb, Y-cc, Y-dd, Z-aa,
Z-bb, Z-cc and Z-dd Regular Interests is greater than or equal to zero for such Distribution Date;
2. Making the REMIC I Regular Interest Y-aa Principal Balance less than or equal to 0.0005 of the sum of
the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Z-aa Principal Balances, the REMIC I
Regular Interest Y-bb Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular
Interest Y-bb and REMIC I Regular Interest Z-bb Principal Balances, the REMIC I Regular Interest Y-bb
Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-cc and
REMIC I Regular Interest Z-cc Principal Balances and the REMIC I Regular Interest Y-dd Principal
Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-dd and REMIC I
Regular Interest Z-dd Principal Balances in each case after giving effect to allocations of Realized
Losses and distributions to be made through the end of the Distribution Date to which such provisions
relate; and
3. Making the larger of (a) the fraction whose numerator is Ymm and whose denominator is the sum of Ymm
and REMIC I Regular Interest Z-dd Principal Balance and (b) the fraction whose numerator is Y5 and
whose denominator is the sum of Y5, the REMIC I Regular Interest Z-aa Principal Balance, the REMIC I
Regular Interest Z-bb Principal Balance and the REMIC I Regular Interest Z-cc Principal Balance as
large as possible while remaining less than or equal to 0.0005.
In the event of a failure of the foregoing portion of the definition of REMIC I Regular
Interest Y Principal Reduction Amount to accomplish both of goals 1 and 2 above, the amounts thereof should
be adjusted to so as to accomplish such goals within the requirement that each REMIC I Regular Interest Y
Principal Reduction Amount must be less than or equal to the sum of (a) the principal portion of Realized
Losses to be allocated on the related Distribution Date for the related Group remaining after the allocation
of such Realized Losses to the related P-M Regular Interest (if any) and (b) the remainder of the portion of
the REMIC I Available Distribution Amount derived from the related Group after reduction thereof by the
distributions to be made on such Distribution Date (i) to the related P-M Regular Interest (if any), (ii) to
the related X-M Regular Interests and (iii) in respect of interest on the related Y and Z Regular Interests,
or, if both of such goals cannot be accomplished within such requirement, such adjustment as is necessary
shall be made to accomplish goal 1 within such requirement. In the event of any conflict among the
provisions of the definition of the REMIC I Regular Interest Y Principal Reduction Amounts, such conflict
shall be resolved on the basis of the goals and their priorities set forth above within the requirement set
forth in the preceding sentence. If the formula allocation of ΔY5 among ΔYjj, ΔYkk and ΔYll cannot be
achieved because either ΔYjj as so defined is greater than ΔPjj, ΔYkk as so defined is greater than ΔPkk or
ΔYll as so defined is greater than ΔPll, such an allocation shall be made as close as possible to the formula
allocation within the requirement that ΔYjj < ΔPjj, ΔYkk < ΔPkk and ΔYll < ΔPll.
II. If R<=K%, make the following additional definitions:
δYkk = 0, if R2< r2;
(R2- r2)( Ykk + Yll + Ymm)Ykk/((R2 - K%)Ykk + (R2 - L%)Yll), if R2=> r2 and R2=>L%; and
(R2- r2)( Ykk + Yll + Ymm)/(R2 - K%), if R2=> r2 and R2<L%;
δYll = 0, if R2< r2 and R2=>L%;
(R2- r2)( Ykk + Yll + Ymm)Yll/((R2 - L%)Yll + (R2 - M%)Ymm), if R2< r2 and R2<L%;
(R2- r2)( Ykk + Yll + Ymm)Yll/((R2 - K%)Ykk + (R2 - L%)Yll), if R2=> r2 and R2=>L%; and
0, if R2=> r2 and R2<L%; and
δYmm = (R2- r2)( Ykk + Yll + Ymm)/(R2 - M%), if R2< r2 and R2=>L%;
(R2- r2)( Ykk + Yll + Ymm)Ymm/((R2 - L%)Yll + (R2 - M%)Ymm), if R2< r2 and R2<L%; and
0, if R2=> r2.
δYkk, δYll, and δYmm are numbers between Ykk and 0, Yll and 0, and Ymm and 0, respectively,
such that
(K%(Ykk - δYkk) + L%( Yll.- δYll) + M%( Ymm.- δYmm))/(Ykk - δYkk + Yll.-
δYll + Ymm.- δYmm) = R2.
Y6 = Ykk - δYkk + Yll.- δYll + Ymm.- δYmm
P6 = Pkk + Pll + Pmm.
ΔP6 = ΔPkk + ΔPll + ΔPmm.
ΔY6 = ΔYkk - δYkk + ΔYll.- δYll + ΔYmm.- δYmm
1. If Y6 - α(P6 - ΔP6) => 0, Yjj- α(Pjj - ΔPjj) => 0, and γ2(Pjj - ΔPjj)
< (P6 - ΔP6), ΔY6 = Y6 - αγ2(Pjj - ΔPjj) and
ΔYjj = Yjj - α(Pjj - ΔPjj).
2. If Y6 - α(P6 - ΔP6) => 0, Yjj - α(Pjj - ΔPjj) => 0, and
γ2(Pjj - ΔPjj) => (P6 - ΔP6), ΔY6 = Y6 - α(P6 - ΔP6) and
ΔYjj = Yjj - (α/γ2)(P6 - ΔP6).
3. If Y6 - α(P6 - ΔP6) < 0, Yjj - α(Pjj - ΔPjj) => 0, and
Yjj - α(Pjj - ΔPjj) => Yjj - (Y6/γ2), ΔY6 = Y6 - αγ2(Pjj - ΔPjj)
and ΔYjj = Yjj - α(Pjj - ΔPjj).
4. If Y6 - α(P6 - ΔP6) < 0, Yjj - (Y6/γ2) => 0, and
Yjj - α(Pjj - ΔPjj) <= Yjj - (Y6/γ2), ΔY6 = 0 and ΔYjj = Yjj - (Y6/γ2).
5. If Yjj - α(Pjj - ΔPjj) < 0, Yjj - (Y6/γ2) < 0, and
Y6 - α(P6 - ΔP6) <= Y6 - (γ2Yjj), ΔY6 = Y6 - (γ2Yjj) and ΔYjj = 0.
6. If Yjj - α(Pjj - ΔPjj) < 0, Y6 - α(P6 - ΔP6) => 0, and
Y6 - α(P6 - ΔP6) => Y6 - (γ2Yjj), ΔY6 = Y6 - α(P6 - ΔP6) and
ΔYjj = Yjj - (α/γ2)(P6 - ΔP6).
ΔYkk = δYkk + [(Ykk - δYkk)/(Ykk - δYkk + Yll - δYll + Ymm - δYmm)] ΔY6
ΔYll = δYll + [(Yll - δYll)/(Ykk - δYkk + Yll - δYll + Ymm - δYmm)] ΔY6
ΔYmm = δYmm + [(Ymm - δYmm)/(Ykk - δYkk + Yll - δYll + Ymm - δYmm)]Δ Y6
The purpose of the foregoing definitional provisions together with the related provisions
allocating Realized Losses and defining the REMIC I Regular Interest Y and REMIC I Regular Interest Z
Principal Distribution Amounts is to accomplish the following goals in the following order of priority:
1. Making the ratio of Y6 to Yjj equal to γ2 after taking account of the allocation Realized Losses
and the distributions that will be made through end of the Distribution Date to which such provisions
relate and assuring that the Principal Reduction Amount for each of the Y-aa, Y-bb, Y-cc, Y-dd, Z-aa,
Z-bb, Z-cc and Z-dd Regular Interests is greater than or equal to zero for such Distribution Date;
2. Making the REMIC I Regular Interest Y-aa Principal Balance less than or equal to 0.0005 of the sum of
the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Z-aa Principal Balances, the REMIC I
Regular Interest Y-bb Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular
Interest Y-bb and REMIC I Regular Interest Z-bb Principal Balances, the REMIC I Regular Interest Y-bb
Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-cc and
REMIC I Regular Interest Z-cc Principal Balances and the REMIC I Regular Interest Y-dd Principal
Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-dd and REMIC I
Regular Interest Z-dd Principal Balances in each case after giving effect to allocations of Realized
Losses and distributions to be made through the end of the Distribution Date to which such provisions
relate; and
3. Making the larger of (a) the fraction whose numerator is Yjj and whose denominator is the sum of Yjj
and REMIC I Regular Interest Z-aa Principal Balance and (b) the fraction whose numerator is Y6 and
whose denominator is the sum of Y6, the REMIC I Regular Interest Z-bb Principal Balance, the REMIC I
Regular Interest Z-cc Principal Balance and the REMIC I Regular Interest Z-dd Principal Balance as
large as possible while remaining less than or equal to 0.0005.
In the event of a failure of the foregoing portion of the definition of REMIC I Regular Interest Y Principal
Reduction Amount to accomplish both of goals 1 and 2 above, the amounts thereof should be adjusted to
so as to accomplish such goals within the requirement that each REMIC I Regular Interest Y Principal
Reduction Amount must be less than or equal to the sum of (a) the principal portion of Realized Losses
to be allocated on the related Distribution Date for the related Group remaining after the allocation
of such Realized Losses to the related P-M Regular Interest (if any) and (b) the remainder of the
portion of the REMIC I Available Distribution Amount derived from the related Group after reduction
thereof by the distributions to be made on such Distribution Date (i) to the related P-M Regular
Interest (if any), (ii) to the related X-M Regular Interests and (iii) in respect of interest on the
related Y and Z Regular Interests, or, if both of such goals cannot be accomplished within such
requirement, such adjustment as is necessary shall be made to accomplish goal 1 within such
requirement. In the event of any conflict among the provisions of the definition of the Y Principal
Reduction Amounts, such conflict shall be resolved on the basis of the goals and their priorities set
forth above within the requirement set forth in the preceding sentence. If the formula allocation of
ΔY6 among ΔYkk, ΔYll and ΔYmm cannot be achieved because either ΔYkk as so defined is greater than
ΔPkk, ΔYll as so defined is greater than ΔPll or ΔYmm as so defined is greater than ΔPmm, such an
allocation shall be made as close as possible to the formula allocation within the requirement that
ΔYkk < ΔPkk, ΔYll < ΔPll and ΔYmm < ΔPmm.
III. If K%<=R<=L%, make the following additional definitions:
δYjj = 0, if R3< r3; and
(R3- r3)( Yjj + Ykk)/(R3 - J%), if R3=> r3;
δYkk = 0, if R3=> r3; and
(R3- r3)( Yjj + Ykk)/(R3 - K%), if R3< r3;
δYll = 0, if R4< r4; and
(R4- r4)(Yll + Ymm)/(R4 - L%), if R4=> r4; and
δYmm = (R4- r4)(Yll + Ymm)/(R4 - M%), if R4< r4; and
0, if R4=> r4.
δYjj, δYkk, δYll, and δYmm are numbers between Yjj and 0, Ykk and 0, Yll and 0, and
Ymm and 0, respectively, such that
(J%(Yjj - δYjj) + K%(Ykk.- δYkk))/(Yjj - δYjj + Ykk.- δYkk) = R3 and
(L%(Yll - δYll) + M%(Ymm.- δYmm))/(Yll - δYll + Ymm.- δYmm) = R4.
Y7 = Yjj - δYjj + Ykk.- δYkk
P7 = Pjj + Pkk.
ΔP7 = ΔPjj + ΔPkk.
ΔY7 = ΔYjj - δYjj + ΔYkk.- δYkk.
Y8 = Yll.- δYll + Ymm.- δYmm.
P8 = Pll + Pmm.
ΔP8 = ΔPll + ΔPmm.
ΔY8 = ΔYll.- δYll + ΔYmm.- δYmm
1. If Y8 - α(P8 - ΔP8) => 0, Y7- α(P7 - ΔP7) => 0, and γ3(P7 - ΔP7) <
(P8 - ΔP8), ΔY8 = Y8 - αγ3(P7 - ΔP7) and
ΔY7 = Y7 - α(P7 - ΔP7).
2. If Y8 - α(P8 - ΔP8) => 0, Y7 - α(P7 - ΔP7) => 0, and γ3(P7 - ΔP7) =>
(P8 - ΔP8), ΔY8 = Y8 - α(P8 - ΔP8) and
ΔY7 = Y7 - (α/γ3)(P8 - ΔP8).
3. If Y8 - α(P8 - ΔP8) < 0, Y7 - α(P7 - ΔP7) => 0, and Y7 - α(P7 - ΔP7)
=> Y7 - (Y8/γ3), ΔY8 = Y8 - αγ3(P7 - ΔP7) and
ΔY7 = Y7 - α(P7 - ΔP7).
4. If Y8 - α(P8 - ΔP8) < 0, Y7 - (Y8/γ3) => 0, and
Y7 - α(P7 - ΔP7) <= Y7 - (Y8/γ3), ΔY8 = 0 and ΔY7 = Y7 - (Y8/γ3).
5. If Y7 - α(P7 - ΔP7) < 0, Y7 - (Y8/γ3) < 0, and
Y8 - α(P8 - ΔP8) <= Y8 - (γ3Y7), ΔY8 = Y8 - (γ3Y7) and ΔY7 = 0.
6. If Y7 - α(P7 - ΔP7) < 0, Y8 - α(P8 - ΔP8) => 0, and Y8 - α(P8 - ΔP8)
=> Y8 - (γ3Y7), ΔY8 = Y8 - α(P8 - ΔP8) and
ΔY7 = Y7 - (α/γ3)(P8 - ΔP8).
ΔYjj = δYjj + [(Yjj - δYjj)/(Yjj - δYjj + Ykk - δYkk)] ΔY7
ΔYkk = δYkk + [(Ykk - δYkk)/( Yjj - δYjj + Ykk - δYkk)]ΔY7
ΔYll = δYll + [(Yll - δYll)/(Yll - δYll + Ymm - δYmm)] ΔY8
ΔYmm = δYmm + [(Ymm - δYmm)/(Yll - δYll + Ymm - δYmm)] ΔY8
The purpose of the foregoing definitional provisions together with the related provisions
allocating Realized Losses and defining the REMIC I Regular Interest Y and REMIC I Regular Interest Z
Principal Distribution Amounts is to accomplish the following goals in the following order of priority:
1. Making the ratio of Y8 to Y7 equal to γ3 after taking account of the allocation Realized Losses
and the distributions that will be made through end of the Distribution Date to which such provisions
relate and assuring that the Principal Reduction Amount for each of the Y-aa, Y-bb, Y-cc, Y-dd, Z-aa,
Z-bb, Z-cc and Z-dd Regular Interests is greater than or equal to zero for such Distribution Date;
2. Making the REMIC I Regular Interest Y-aa Principal Balance less than or equal to 0.0005 of the sum of
the REMIC I Regular Interest Y-aa and REMIC I Regular Interest Z-aa Principal Balances, the REMIC I
Regular Interest Y-bb Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular
Interest Y-bb and REMIC I Regular Interest Z-bb Principal Balances, the REMIC I Regular Interest Y-bb
Principal Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-cc and
REMIC I Regular Interest Z-cc Principal Balances and the REMIC I Regular Interest Y-dd Principal
Balance less than or equal to 0.0005 of the sum of the REMIC I Regular Interest Y-dd and REMIC I
Regular Interest Z-dd Principal Balances in each case after giving effect to allocations of Realized
Losses and distributions to be made through the end of the Distribution Date to which such provisions
relate; and
3. Making the larger of (a) the fraction whose numerator is Y7 and whose denominator is the sum of Y7,
the REMIC I Regular Interest Z-aa Principal Balance and the REMIC I Regular Interest Z-bb Principal
Balance and (b) the fraction whose numerator is Y8 and whose denominator is the sum of Y8, the REMIC I
Regular Interest Z-cc Principal Balance and the REMIC I Regular Interest Z-dd Principal Balance as
large as possible while remaining less than or equal to 0.0005.
In the event of a failure of the foregoing portion of the definition of REMIC I Regular Interest Y Principal
Reduction Amount to accomplish both of goals 1 and 2 above, the amounts thereof should be adjusted to
so as to accomplish such goals within the requirement that each REMIC I Regular Interest Y Principal
Reduction Amount must be less than or equal to the sum of (a) the principal portion of Realized Losses
to be allocated on the related Distribution Date for the related Group remaining after the allocation
of such Realized Losses to the related P-M Regular Interest (if any) and (b) the remainder of the
portion of the REMIC I Available Distribution Amount derived from the related Group after reduction
thereof by the distributions to be made on such Distribution Date (i) to the related P-M Regular
Interest (if any), (ii) to the related X-M Regular Interests and (iii) in respect of interest on the
related Y and Z Regular Interests, or, if both of such goals cannot be accomplished within such
requirement, such adjustment as is necessary shall be made to accomplish goal 1 within such
requirement. In the event of any conflict among the provisions of the definition of the REMIC I
Regular Interest Y Principal Reduction Amounts, such conflict shall be resolved on the basis of the
goals and their priorities set forth above within the requirement set forth in the preceding
sentence. If the formula allocation of ΔY7 between ΔYjj and ΔYkk, or of ΔY8 between ΔYll and ΔYmm
cannot be achieved because either ΔYjj as so defined is greater than ΔPjj, ΔYkk as so defined is
greater than ΔPkk, ΔYll as so defined is greater than ΔPll or ΔYmm as so defined is greater than ΔPmm,
such an allocation shall be made as close as possible to the formula allocation within the requirement
that ΔYjj < ΔPjj, ΔYkk < ΔPkk, ΔYll < ΔPll and ΔYmm < ΔPmm.
APPENDIX 2
CALCULATION OF REMIC II PRINCIPAL REDUCTION AMOUNTS
For any Distribution Date, the amounts by which the principal balances of the REMIC II Regular
Interests LT1, LT2, LT3, LT4, LT5, LT6, LT7, LT8, LT9, LT10, LT11, LT12, LT13, LT14, LT15, LT16, LT17, LT18,
LT19, LT20, LT21, LT22, LT23, LT24, LT25, LT26, LT27, LT28, LT29, LT30, LT31, ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4,
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 aggregate principal balance of the REMIC II Regular Interest LT1 and REMIC II Regular
Interest LT-Y1 after distributions, the allocation of Net Deferred Interest and the allocation of Realized
Losses on the prior Distribution Date.
Y2 = the principal balance of the REMIC II Regular Interest LT2 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y3 = the principal balance of the REMIC II Regular Interest LT3 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y4 = the principal balance of the REMIC II Regular Interest LT4 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (note: Y3 =
Y4).
Y5 = the principal balance of the REMIC II Regular Interest LT5 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y6 = the principal balance of the REMIC II Regular Interest LT6 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y7 = the principal balance of the REMIC II Regular Interest LT7 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (note: Y6 =
Y7).
Y8 = the aggregate principal balance of the REMIC II Regular Interest LT8 and REMIC II Regular
Interest LT-Y2 after distributions and the allocation of Realized Losses and Net Deferred Interest on the
prior Distribution Date.
Y9 = the principal balance of the REMIC II Regular Interest LT9 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y10 = the principal balance of the REMIC II Regular Interest LT10 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y11 = the principal balance of the REMIC II Regular Interest LT11 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date (note: Y11 = Y10).
Y12 = the principal balance of the REMIC II Regular Interest LT12 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y13 = the principal balance of the REMIC II Regular Interest LT13 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y14 = the principal balance of the REMIC II Regular Interest LT14 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (note: Y13 =
Y14).
Y15 = the principal balance of the REMIC II Regular Interest LT15 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y16 = the principal balance of the REMIC II Regular Interest LT16 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y17 = the principal balance of the REMIC II Regular Interest LT17 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (note: Y16 =
Y17).
Y18 = the aggregate principal balance of the REMIC II Regular Interest LT18 and REMIC II Regular
Interest LT-Y3 after distributions, the allocation of Net Deferred Interest and the allocation of Realized
Losses on the prior Distribution Date.
Y19 = the principal balance of the REMIC II Regular Interest LT19 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y20 = the principal balance of the REMIC II Regular Interest LT20 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
Y21 = the principal balance of the REMIC II Regular Interest LT21 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (note: Y20 =
Y21).
Y22 = the aggregate principal balance of the REMIC II Regular Interest LT22 and REMIC II Regular
Interest LT-Y4 after distributions and the allocation of Realized Losses and Net Deferred Interest on the
prior Distribution Date.
Y23 = the principal balance of the REMIC II Regular Interest LT23 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y24 = the principal balance of the REMIC II Regular Interest LT24 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y25 = the principal balance of the REMIC II Regular Interest LT25 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date (note: Y24 = Y25).
Y26 = the principal balance of the REMIC II Regular Interest LT23 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y27 = the principal balance of the REMIC II Regular Interest LT24 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y28 = the principal balance of the REMIC II Regular Interest LT28 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date (note: Y27 = Y28).
Y29 = the aggregate principal balance of the REMIC II Regular Interest LT29 after distributions and
the allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y30 = the principal balance of the REMIC II Regular Interest LT30 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date.
Y31 = the principal balance of the REMIC II Regular Interest LT31 after distributions and the
allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date (note: Y30 = Y31).
ΔY1 = the aggregate of the REMIC II Regular Interest LT1 Principal Reduction Amount and the REMIC II
Regular Interest LT-Y1 Principal Reduction Amount.
ΔY2 = the REMIC II Regular Interest LT2 Principal Reduction Amount.
ΔY3 = the REMIC II Regular Interest LT3 Principal Reduction Amount.
ΔY4 = the REMIC II Regular Interest LT4 Principal Reduction Amount.
ΔY5 = the REMIC II Regular Interest LT5 Principal Reduction Amount.
ΔY6 = the REMIC II Regular Interest LT6 Principal Reduction Amount.
ΔY7 = the REMIC II Regular Interest LT7 Principal Reduction Amount.
ΔY8 = the aggregate of the REMIC II Regular Interest LT8 Principal Reduction Amount and the REMIC II
Regular Interest LT-Y2 Principal Reduction Amount.
ΔY9 = the REMIC II Regular Interest LT9 Principal Reduction Amount.
ΔY10 = the REMIC II Regular Interest LT10 Principal Reduction Amount.
ΔY11 = the REMIC II Regular Interest LT11 Principal Reduction Amount.
ΔY12 = the REMIC II Regular Interest LT12 Principal Reduction Amount.
ΔY13 = the REMIC II Regular Interest LT13 Principal Reduction Amount.
ΔY14 = the REMIC II Regular Interest LT14 Principal Reduction Amount.
ΔY15 = the REMIC II Regular Interest LT15 Principal Reduction Amount.
ΔY16 = the REMIC II Regular Interest LT16 Principal Reduction Amount.
ΔY17 = the REMIC II Regular Interest LT17 Principal Reduction Amount.
ΔY18 = the aggregate of the REMIC II Regular Interest LT18 Principal Reduction Amount and the REMIC II
Regular Interest LT-Y3 Principal Reduction Amount.
ΔY19 = the REMIC II Regular Interest LT19 Principal Reduction Amount.
ΔY20 = the REMIC II Regular Interest LT20 Principal Reduction Amount.
ΔY21 = the REMIC II Regular Interest LT21 Principal Reduction Amount.
ΔY22 = the aggregate of the REMIC II Regular Interest LT22 Principal Reduction Amount and the REMIC II
Regular Interest LT-Y4 Principal Reduction Amount.
ΔY23 = the REMIC II Regular Interest LT23 Principal Reduction Amount.
ΔY24 = the REMIC II Regular Interest LT24 Principal Reduction Amount.
ΔY25 = the REMIC II Regular Interest LT25 Principal Reduction Amount.
ΔY26 = the REMIC II Regular Interest LT26 Principal Reduction Amount.
ΔY27 = the REMIC II Regular Interest LT27 Principal Reduction Amount.
ΔY28 = the REMIC II Regular Interest LT28 Principal Reduction Amount.
ΔY29 = the REMIC II Regular Interest LT29 Principal Reduction Amount.
ΔY30 = the REMIC II Regular Interest LT30 Principal Reduction Amount.
ΔY31 = the REMIC II Regular Interest LT31 Principal Reduction Amount.
O0 = the aggregate principal balance of the REMIC II Regular Interests LT1, LT2, LT3, LT4, LT5, LT6,
LT7, LT8, LT9, LT10, LT11, LT12, LT13, LT14, LT15, LT16, LT17, LT18, LT19, LT20, LT21, LT22, LT23, LT24,
LT25, LT26, LT27, LT28, LT29, LT30, LT31, ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
O1 = the aggregate principal balance of the REMIC II Regular Interests LT1, LT2, LT3, LT4, LT5, LT6,
LT7, LT8, LT9, LT10, LT11, LT12, LT13, LT14, LT15, LT16, LT17, LT18, LT19, LT20, LT21, LT22, LT23, LT24,
LT25, LT26, LT27, LT28, LT29, LT30, LT31, ▇▇-▇▇, ▇▇-▇▇, LT-Y3 and LT-Y4 after distributions, the allocation
of Net Deferred Interest and the allocation of Realized Losses to be made on such Distribution Date.
P0 = the aggregate principal balance of the Mortgage Loans in Loan Group I after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
P1 = the aggregate principal balance of the Mortgage Loans in Loan Group I after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses to be made on such Distribution
Date.
Q0 = the aggregate principal balance of the Mortgage Loans in Loan Group II after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date (Q0
= (1)Q0 + (2)Q0 + (3)Q0, where (1)Q0 , (2)Q0 and (3)Q0 represent the portions of Q0 derived from the
respective subgroups of the Group II Loans).
Q1 = the aggregate principal balance of the Mortgage Loans in Loan Group II after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses to be made on such Distribution
Date (Q1 = (1)Q1 + (2)Q1 + (3)Q1, where (1)Q1 , (2)Q1 and (3)Q1 represent the portions of Q0 derived from the
respective subgroups of the Group II Loans).
M0 = the aggregate principal balance of the Mortgage Loans in Loan Group III after distributions,
the allocation of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
M1 = the aggregate principal balance of the Mortgage Loans in Loan Group III after distributions,
the allocation of Net Deferred Interest and the allocation of Realized Losses to be made on such Distribution
Date.
N0 = the aggregate principal balance of the Mortgage Loans in Loan Group IV after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses on the prior Distribution Date.
N1 = the aggregate principal balance of the Mortgage Loans in Loan Group IV after distributions, the
allocation of Net Deferred Interest and the allocation of Realized Losses to be made on such Distribution
Date.
ΔO = O0 - O1 = the aggregate of the REMIC II Regular Interests LT1, LT2, LT3, LT4, LT5, LT6, LT7,
LT8, LT9, LT10, LT11, LT12, LT13, LT14, LT15, LT16, LT17, LT18, LT19, LT20, LT21, LT22, LT23, LT24, LT25,
LT26, LT27, LT28, LT29, LT30, ▇▇▇▇, ▇▇-▇▇, LT-Y2, LT-Y3 and LT-Y4 Principal Reduction Amounts, which
=the aggregate of the Net Deferred Interest and the principal portions of Realized Losses to be
allocated to, and the principal distributions to be made on, the Certificates on such Distribution Date
(including distributions of accrued and unpaid interest on the Class I-X-1, Class I-X-2, Class II-X-1,
Class II-X-2, Class II-X-3, Class III-X-1, Class IV-X-1, Class IV-X-1 and Class M-X Certificates for prior
Distribution Dates).
ΔP = P0 - P1 = the aggregate of the Net Deferred Interest and the principal portions of Realized
Losses to be allocated to, and the principal distributions to be made on, the Certificates on such
Distribution Date (including distributions of accrued and unpaid interest on the Class I-X-1, Class I-X-2 and
Class M-X Certificates for prior Distribution Dates) from amounts payable with respect to the Mortgage Loans
in Loan Group I.
ΔQ = Q0 - Q1 = the aggregate of the Net Deferred Interest and the principal portions of Realized
Losses to be allocated to, and the principal distributions to be made on, the Certificates on such
Distribution Date (including distributions of accrued and unpaid interest on the Class II-X-1, Class II-X-2,
Class II-X-3 and Class M-X Certificates for prior Distribution Dates) from amounts payable with respect to
the Mortgage Loans in Loan Group II.
ΔM = M0 - M1 = the aggregate of the Net Deferred Interest and the principal portions of Realized
Losses to be allocated to, and the principal distributions to be made on, the Certificates on such
Distribution Date (including distributions of accrued and unpaid interest on the Class III-X-1 and Class M-X
Certificates for prior Distribution Dates) from amounts payable with respect to the Mortgage Loans in Loan
Group III.
ΔN = N0 - N1 = the aggregate of the Net Deferred Interest and the principal portions of Realized
Losses to be allocated to, and the principal distributions to be made on, the Certificates on such
Distribution Date (including distributions of accrued and unpaid interest on the Class IV-X-1, Class IV-X-1
and Class M-X Certificates for prior Distribution Dates) from amounts payable with respect to the Mortgage
Loans in Loan Group IV.
V0 = the weighted average of the Net Rates on the Mortgage Loans (stated as a monthly rate) after
giving effect to amounts distributed and Realized Losses and Net Deferred Interest allocated on the prior
Distribution Date.
V1 = the weighted average of the Net Rates on the Mortgage Loans (stated as a monthly rate) after
giving effect to amounts to be distributed and Realized Losses and Net Deferred Interest to be allocated on
such Distribution Date.
R0 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group I after giving effect to amounts distributed and Realized Losses and Net Deferred Interest allocated on
the prior Distribution Date.
R1 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group I after giving effect to amounts to be distributed and Realized Losses and Net Deferred Interest to be
allocated on such Distribution Date.
S0 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group II after giving effect to amounts distributed and Realized Losses and Net Deferred Interest allocated
on the prior Distribution Date.
S1 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group II after giving effect to amounts to be distributed and Realized Losses and Net Deferred Interest to be
allocated on such Distribution Date.
T0 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group III after giving effect to amounts distributed and Realized Losses and Net Deferred Interest allocated
on the prior Distribution Date.
T1 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group III after giving effect to amounts to be distributed and Realized Losses and Net Deferred Interest to
be allocated on such Distribution Date.
U0 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group IV after giving effect to amounts distributed and Realized Losses and Net Deferred Interest allocated
on the prior Distribution Date.
U1 = the weighted average (stated as a monthly rate) of the Net Rates on the Mortgage Loans in Loan
Group IV after giving effect to amounts to be distributed and Realized Losses and Net Deferred Interest to be
allocated on such Distribution Date.
G0 = P0 minus the aggregate principal balance of the Class I-A Certificates and the Class I-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on the prior Distribution Date.
G1 = P1 minus the aggregate principal balance of the Class I-A Certificates and the Class I-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on such Distribution Date.
H0 = Q0 minus the aggregate principal balance of the Class II-A Certificates and the Class II-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on the prior Distribution Date (H0 = (1)H0 + (2)H0 + (3)H0, where (1)H0 , (2)H0 and (3)H0 represent
the portions of Q0 derived from the respective subgroups of the Group II Loans.
H1 = Q1 minus the aggregate principal balance of the Class II-A Certificates and the Class II-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on such Distribution Date (H1 = (1)H1 + (2)H1 + (3)H1, where (1)H1 , (2)H1 and (3)H1 represent the
portions of Q1 derived from the respective subgroups of the Group II Loans..
I0 = M0 minus the aggregate principal balance of the Class III-A Certificates and the Class III-X-1
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on the prior Distribution Date.
I1 = M1 minus the aggregate principal balance of the Class III-A Certificates and the Class III-X-1
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on such Distribution Date.
J0 = N0 minus the aggregate principal balance of the Class IV-A Certificates and the Class IV-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on the prior Distribution Date.
J1 = N1 minus the aggregate principal balance of the Class IV-A Certificates and the Class IV-X
Certificates after giving effect to amounts distributed and Realized Losses and Net Deferred Interest
allocated on such Distribution Date.
g0 = G0 /( G0 + H0 + I0 + J0 )
h0 = H0 /( G0 + H0 + I0 + J0 ). h0 = (1)h0 + (2)h0 + (3)h0, where (1)h0 is the portion of h0 that
relates to Subgroup IIa, etcetra.
i0 = I0 /( G0 + H0 + I0 + J0 )
j0 = J0 /( G0 + H0 + I0 + J0 )
g1 = G1 /( G1 + H1 + I1 + J1 )
h1 = H1 /( G1 + H1 + I1 + J1 ). h1 = (1)h1 + (2)h1 + (3)h1, where (1)h1 is the portion of h1 that
relates to Subgroup IIa, etcetra.
i1 = I1 /( G1 + H1 + I1 + J1 )
j1 = J1 /( G1 + H1 + I1 + J1 )
Д = ▇▇ - ▇▇
▇ ▇ ▇▇ - ▇▇
Я = I0 - I1
Ю = J0 - J1
G = Д/( Д + Ж + Я + Ю )
H = Ж/( Д + Ж + Я + Ю )
I = Я/( Д + Ж + Я + Ю )
H = Ю/( Д + Ж + Я + Ю )
(1)α = (Y2 + Y3)/P0. The initial value of α on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(1)γ0 =the lesser of (A) the sum of (1) for the Class of Class I-A-1 Certificates, the product 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 and Net Deferred Interest on the prior
Distribution Date, (2) for the Class I-A-2 Certificates, the product of (i) the Net Rate Cap for such
Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (3) for all Classes of Class M
and Class B Certificates, the product for each Class of (i) the Net Rate Cap applicable to the Class I-A
Certificates, stated as a monthly interest rate, applicable for distributions to be made on such Distribution
Date, (ii) the aggregate Certificate Principal Balance for such Class after distributions and the allocation
of Realized Losses and Net Deferred Interest on the prior Distribution Date and (iii) g0 and (B) R0*P0.
(1)γ1 = the lesser of (A) the sum of (1) for the Class I-A-1 Certificates, the product 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 and Net Deferred
Interest to be made on such Distribution Date, (2) for the Class I-A-2 Certificates, the product of (i) the
Net Rate Cap for such Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) the Net Rate Cap applicable to the Class I-A Certificates, stated as a monthly interest rate,
applicable for distributions to be made on the next succeeding Distribution Date, (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the allocation of Realized Losses and
Net Deferred Interest to be made on such Distribution Date and (iii) g1 and (B) R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4 - ΔY5 - ΔY6 - ΔY7 - G (ΔY29 - ΔY30 - ΔY31 ),
ΔY2 = ((1)α/2){( (1)γ0R1 - (1)γ1R0)/R0R1};
ΔY3 = (1)αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = (1)α{(1)γ1R0P0 - (1)γ0R1P1}/{2R1R0P1 - (1)γ1R0}; and
ΔY4 = ΔY3.
(2) If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = (1)α{γ1R0P0 - γ0R1P1}/{γ1R0}; and
ΔY4 = ΔY3.
(2)α = (Y5 + Y6)/P0. The initial value of α on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(2)γ0 =the lesser of (A) the sum of (1) for the Class of Class I-A-2 Certificates, the product 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 and Net Deferred Interest on the prior
Distribution Date, (2) for the Class I-A-1 Certificates, the product of (i) the Net Rate Cap for such
Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (3) for all Classes of Class M
and Class B Certificates, the product for each Class of (i) the Net Rate Cap applicable to the Class I-A
Certificates, stated as a monthly interest rate, applicable for distributions to be made on such Distribution
Date, (ii) the aggregate Certificate Principal Balance for such Class after distributions and the allocation
of Realized Losses and Net Deferred Interest on the prior Distribution Date and (iii) g0 and (B) R0*P0.
(2)γ1 = the lesser of (A) the sum of (1) for the Class I-A-2 Certificates, the product 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 and Net Deferred
Interest to be made on such Distribution Date, (2) for the Class I-A-1 Certificates, the product of (i) the
Net Rate Cap for such Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) the Net Rate Cap applicable to the Class I-A Certificates, stated as a monthly interest rate,
applicable for distributions to be made on the next succeeding Distribution Date, (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the allocation of Realized Losses and
Net Deferred Interest to be made on such Distribution Date and (iii) g1 and (B) R1*P1.
Then, based on the foregoing definitions:
ΔY5 = ((2)α/2){( (2)γ0R1 - (2)γ1R0)/R0R1};
ΔY6 = (2)αΔP - ΔY5; and
ΔY7 = ΔY6.
if both ΔY5 and ΔY6, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY6, as so determined, is negative, then
ΔY6 = 0;
ΔY5 = (2)α{(2)γ1R0P0 - (2)γ0R1P1}/{2R1R0P1 - (2)γ1R0}; and
ΔY7 = ΔY6.
(2) If ΔY5, as so determined, is negative, then
ΔY5 = 0;
ΔY6 = (2)α{(2)γ1R0P0 - (2)γ0R1P1}/{(2)γ1R0}; and
ΔY7 = ΔY6.
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4. - ΔY5 - ΔY6 - ΔY7 - G ( ΔY29 - ΔY30 - ΔY31 ).
For purposes of the succeeding formulas the following symbols shall have the meanings set forth below:
(1)β = (Y9 + Y10)/Q0. The initial value of β on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(1)Γ0 =the lesser of (A) the sum of (1) for the II-A-1a Component of the II-A-1 Certificates, the
II-A-2a Component of the II-A-2 Certificates and the II-A-3a Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on such Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Component after distributions and the allocation of Realized Losses
and Net Deferred Interest on the prior Distribution Date, (2) for the II-A-1b and II-A-1c Components of the
II-A-1 Certificates, the II-A-2b and II-A-2c Components of the II-A-2 Certificates and the II-A-3b and
II-A-3c Components of the II-A-3 Certificates, the product for each Component of (i) the monthly interest rate
(as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions to be made on
such Distribution Date and (ii) the aggregate Certificate Principal Balance for such Component after
distributions and the allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date
and (3) for all Classes of Class M and Class B Certificates of the product for each Class of (i) (1)h0
multiplied by the Net Rate Cap applicable to the a Components of the Class II-A Certificates plus (2)h0
multiplied by the Net Rate Cap applicable to the b Components of the Class II-A Certificates plus (3)h0
multiplied by the Net Rate Cap applicable to the c Components of the Class II-A Certificates, where each
rate is stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (B) S0*Q0.
(1)Γ1 = the lesser of (A) the sum of (1) for the II-A-1a Component of the II-A-1 Certificates,
the II-A-2a Component of the II-A-2 Certificates and the II-A-3a Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on then next succeeding Distribution Date and
(ii) the aggregate Certificate Principal Balance for such Component after distributions and the allocation of
Realized Losses and Net Deferred Interest on such Distribution Date, (2) for the II-A-1b and II-A-1c
Components of the II-A-1 Certificates, the II-A-2b and II-A-2c Components of the II-A-2 Certificates and the
II-A-3b and II-A-3c Components of the II-A-3 Certificates, the product for each Component of (i) the monthly
interest rate (as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions
to be made on the next succeeding Distribution Date and (ii) the aggregate Certificate Principal Balance for
such Component after distributions and the allocation of Realized Losses and Net Deferred Interest on such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) (1)h1 multiplied by the Net Rate Cap applicable to the a Components of the Class II-A
Certificates plus (2)h1 multiplied by the Net Rate Cap applicable to the b Components of the Class II-A
Certificates plus (3)h1 multiplied by the Net Rate Cap applicable to the c Components of the Class II-A
Certificates, where each rate is stated as a monthly interest rate, 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 and Net Deferred Interest on such Distribution Date
and (B) S1*Q1.
Then, based on the foregoing definitions:
ΔY9 = ((1)β/2){( (1)Γ0S1 - (1)Γ1S0)/S0S1};
ΔY10 = (1)βΔQ - ΔY9; and
ΔY11 = ΔY10,
if both ΔY9 and ΔY10, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY10, as so determined, is negative, then
ΔY10 = 0;
ΔY9 = (1)β{(1)Γ1S0Q0 - (1)Γ0S1Q1}/{2S1S0Q1 - (1)Γ1S0};
ΔY11 = ΔY10.
(2) If ΔY9, as so determined, is negative, then
ΔY9 = 0;
ΔY10 = (1)β{(1)Γ1S0Q0 - (1)Γ0S1Q1}/{(1)Γ1S0}; and
ΔY11 = ΔY10.
(2)β = (Y12 + Y13)/Q0. The initial value of β on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(2)Γ0 =the lesser of (A) the sum of (1) for the II-A-1b Component of the II-A-1 Certificates, the
II-A-2b Component of the II-A-2 Certificates and the II-A-3b Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on such Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Component after distributions and the allocation of Realized Losses
and Net Deferred Interest on the prior Distribution Date, (2) for the II-A-1a and II-A-1c Components of the
II-A-1 Certificates, the II-A-2a and II-A-2c Components of the II-A-2 Certificates and the II-A-3a and
II-A-3c Components of the II-A-3 Certificates, the product for each Component of (i) the monthly interest rate
(as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions to be made on
such Distribution Date and (ii) the aggregate Certificate Principal Balance for such Component after
distributions and the allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date
and (3) for all Classes of Class M and Class B Certificates of the product for each Class of (i) (1)h0
multiplied by the Net Rate Cap applicable to the a Components of the Class II-A Certificates plus (2)h0
multiplied by the Net Rate Cap applicable to the b Components of the Class II-A Certificates plus (3)h0
multiplied by the Net Rate Cap applicable to the c Components of the Class II-A Certificates, where each
rate is stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (B) S0*Q0.
(2)Γ1 = the lesser of (A) the sum of (1) for the II-A-1b Component of the II-A-1 Certificates,
the II-A-2b Component of the II-A-2 Certificates and the II-A-3b Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on then next succeeding Distribution Date and
(ii) the aggregate Certificate Principal Balance for such Component after distributions and the allocation of
Realized Losses and Net Deferred Interest on such Distribution Date, (2) for the II-A-1a and II-A-1c
Components of the II-A-1 Certificates, the II-A-2a and II-A-2c Components of the II-A-2 Certificates and the
II-A-3a and II-A-3c Components of the II-A-3 Certificates, the product for each Component of (i) the monthly
interest rate (as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions
to be made on the next succeeding Distribution Date and (ii) the aggregate Certificate Principal Balance for
such Component after distributions and the allocation of Realized Losses and Net Deferred Interest on such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) (1)h1 multiplied by the Net Rate Cap applicable to the a Components of the Class II-A
Certificates plus (2)h1 multiplied by the Net Rate Cap applicable to the b Components of the Class II-A
Certificates plus (3)h1 multiplied by the Net Rate Cap applicable to the c Components of the Class II-A
Certificates, where each rate is stated as a monthly interest rate, 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 and Net Deferred Interest on such Distribution Date
and (B) S1*Q1.
Then, based on the foregoing definitions:
ΔY12 = ((2)β/2){( (2)Γ0S1 - (2)Γ1S0)/S0S1};
ΔY13 = (2)βΔQ - ΔY12; and
ΔY14 = ΔY13,
if both ΔY12 and ΔY13, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY13, as so determined, is negative, then
ΔY13 = 0;
ΔY12 = (2)β{(2)Γ1S0Q0 - (2)Γ0S1Q1}/{2S1S0Q1 - (2)Γ1S0};
ΔY14 = ΔY13.
(2) If ΔY12, as so determined, is negative, then
ΔY12 = 0;
ΔY13 = (2)β{(2)Γ1S0Q0 - (2)Γ0S1Q1}/{(2)Γ1S0}; and
ΔY14 = ΔY13.
(3)β = (Y15 + Y16)/Q0. The initial value of β on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(3)Γ0 =the lesser of (A) the sum of (1) for the II-A-1c Component of the II-A-1 Certificates, the
II-A-2c Component of the II-A-2 Certificates and the II-A-3c Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on such Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Component after distributions and the allocation of Realized Losses
and Net Deferred Interest on the prior Distribution Date, (2) for the II-A-1a and II-A-1b Components of the
II-A-1 Certificates, the II-A-2a and II-A-2b Components of the II-A-2 Certificates and the II-A-3a and
II-A-3b Components of the II-A-3 Certificates, the product for each Component of (i) the monthly interest rate
(as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions to be made on
such Distribution Date and (ii) the aggregate Certificate Principal Balance for such Component after
distributions and the allocation of Realized Losses and Net Deferred Interest on the prior Distribution Date
and (3) for all Classes of Class M and Class B Certificates of the product for each Class of (i) (1)h0
multiplied by the Net Rate Cap applicable to the a Components of the Class II-A Certificates plus (2)h0
multiplied by the Net Rate Cap applicable to the b Components of the Class II-A Certificates plus (3)h0
multiplied by the Net Rate Cap applicable to the c Components of the Class II-A Certificates, where each
rate is stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (B) S0*Q0.
(3)Γ1 = the lesser of (A) the sum of (1) for the II-A-1c Component of the II-A-1 Certificates,
the II-A-2c Component of the II-A-2 Certificates and the II-A-3c Component of the II-A-3 Certificates of the
product for each Component of (i) the monthly interest rate (as limited by the Net Rate Cap, if applicable)
for such Component applicable for distributions to be made on then next succeeding Distribution Date and
(ii) the aggregate Certificate Principal Balance for such Component after distributions and the allocation of
Realized Losses and Net Deferred Interest on such Distribution Date, (2) for the II-A-1a and II-A-1b
Components of the II-A-1 Certificates, the II-A-2a and II-A-2b Components of the II-A-2 Certificates and the
II-A-3a and II-A-3b Components of the II-A-3 Certificates, the product for each Component of (i) the monthly
interest rate (as limited by the Net Rate Cap, if applicable) for such Component applicable for distributions
to be made on the next succeeding Distribution Date and (ii) the aggregate Certificate Principal Balance for
such Component after distributions and the allocation of Realized Losses and Net Deferred Interest on such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) (1)h1 multiplied by the Net Rate Cap applicable to the a Components of the Class II-A
Certificates plus (2)h1 multiplied by the Net Rate Cap applicable to the b Components of the Class II-A
Certificates plus (3)h1 multiplied by the Net Rate Cap applicable to the c Components of the Class II-A
Certificates, where each rate is stated as a monthly interest rate, 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 and Net Deferred Interest on such Distribution Date
and (B) S1*Q1.
Then, based on the foregoing definitions:
ΔY15 = ((3)β/2){( (3)Γ0S1 - (3)Γ1S0)/S0S1};
ΔY16 = (3)βΔQ - ΔY15; and
ΔY17 = ΔY16,
if both ΔY15 and ΔY16, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY16, as so determined, is negative, then
ΔY16 = 0;
ΔY15 = (3)β{(3)Γ1S0Q0 - (3)Γ0S1Q1}/{2S1S0Q1 - (3)Γ1S0};
ΔY17 = ΔY16.
(2) If ΔY15, as so determined, is negative, then
ΔY15 = 0;
ΔY16 = (3)β{(3)Γ1S0Q0 - (3)Γ0S1Q1}/{(3)Γ1S0}; and
ΔY17 = ΔY16.
ΔY8 = ΔQ - ΔY9 - ΔY10 - ΔY11 - ΔY12 - ΔY13 - ΔY14- ΔY15 - ΔY16 - ΔY17 - H (ΔY29 - ΔY30 - ΔY31 ).
For purposes of the succeeding formulas the following symbols shall have the meanings set forth below:
ζ = (Y19 + Y20)/M0. The initial value of ζ on the Closing Date for use on the first Distribution
Date shall be 0.0001.
Φ0 = the lesser of (A) the sum of (1) for all Classes of Class III-A 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 and Net Deferred
Interest on the prior Distribution Date and (2) for all Classes of Class M and Class B Certificates of the
product for each Class of (i) the Net Rate Cap applicable to the Class III-A Certificates, stated as a
monthly interest rate, applicable for distributions to be made on such Distribution Date, (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the allocation of Realized Losses and
Net Deferred Interest on the prior Distribution Date and (iii) i0 and (B) T0*M0 reduced by the insurance
premium payable with respect to the Class III-A-2 Certificates from proceeds otherwise available for
distribution on such Distribution date.
Φ1 = the lesser of (A) the sum of (1) for all Classes of Class III-A 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 and
Net Deferred Interest to be made on such Distribution Date and (2) for all Classes of Class M and Class B
Certificates of the product for each Class of (i) the Net Rate Cap applicable to the Class III-A
Certificates, stated as a monthly interest rate, applicable for distributions to be made on the next
succeeding Distribution Date, (ii) the aggregate Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses and Net Deferred Interest to be made on such Distribution
Date and (iii) i1 and (B) T1*M1 reduced by the insurance premium payable with respect to the Class III-A-2
Certificates from proceeds otherwise available for distribution on the next succeeding Distribution date.
Then, based on the foregoing definitions:
ΔY19 = (ζ/2){( Φ0T1 - Φ1T0)/T0T1};
ΔY20 = ζΔM - ΔY19; and
ΔY21 = ΔY20; and
ΔY18 = ΔM - ΔY19 - ΔY20 - ΔY21 - I (ΔY29 - ΔY30 - ΔY31 ),
if both ΔY19 and ΔY20, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY20, as so determined, is negative, then
ΔY20 = 0;
ΔY19 = ζ{ Φ1T0M0 - Φ0T1P1}/{2T1T0M1 - Φ1T0};
ΔY21 = ΔY20; and
ΔY18 = ΔM - ΔY19 - ΔY20 - ΔY21 - I (ΔY29 - ΔY30 - ΔY31 ).
(2) If ΔY19, as so determined, is negative, then
ΔY19 = 0;
ΔY20 = ζ{ Φ1T0M0 - Φ0T1M1}/{ Φ1T0};
ΔY21 = ΔY20; and
ΔY18 = ΔM - ΔY19 - ΔY20 - ΔY21 - I (ΔY29 - ΔY30 - ΔY31 ).
For purposes of the succeeding formulas the following symbols shall have the meanings set forth below:
(1)π = (Y23 + Y24)/N0. The initial value of π on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(1)Ψ0 =the lesser of (A) the sum of (1) for the Class of Class IV-A-1 Certificates, the product 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 and Net Deferred Interest on the prior
Distribution Date, (2) for the Class IV-A-2 Certificates, the product of (i) the Net Rate Cap for such
Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (3) for all Classes of Class M
and Class B Certificates, the product for each Class of (i) the Net Rate Cap applicable to the Class IV-A
Certificates, stated as a monthly interest rate, applicable for distributions to be made on such Distribution
Date, (ii) the aggregate Certificate Principal Balance for such Class after distributions and the allocation
of Realized Losses and Net Deferred Interest on the prior Distribution Date and (iii) j0 and (B) U0*N0.
(1)Ψ1 = the lesser of (A) the sum of (1) for the Class IV-A-1 Certificates, the product 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 and Net Deferred
Interest to be made on such Distribution Date, (2) for the Class IV-A-2 Certificates, the product of (i) the
Net Rate Cap for such Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) the Net Rate Cap applicable to the Class IV-A Certificates, stated as a monthly interest rate,
applicable for distributions to be made on the next succeeding Distribution Date, (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the allocation of Realized Losses and
Net Deferred Interest to be made on such Distribution Date and (iii) j1 and (B) U1*N1.
Then, based on the foregoing definitions:
ΔY23 = ((1)π/2){ (1)ΨΓ0U1 - (1)Ψ1U0)/U0U1};
ΔY24 = (1)πΔN - ΔY23; and
ΔY25 = ΔY24,
if both ΔY23 and ΔY24, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY24, as so determined, is negative, then
ΔY24 = 0;
ΔY23 = (1)π{ (1)Ψ1U0N0 - (1)Ψ0U1N1}/{2U1U0Q1 - (1)Ψ1U0}; and
ΔY25 = ΔY24.
(2) If ΔY23, as so determined, is negative, then
ΔY23 = 0;
ΔY24 = (1)π{ (1)Ψ1U0N0 - (1)Ψ0U1N1}/{ (1)Ψ1U0}; and
ΔY25 = ΔY24.
(2)π = (Y23 + Y24)/N0. The initial value of π on the Closing Date for use on the first Distribution
Date shall be 0.0001.
(2)Ψ0 =the lesser of (A) the sum of (1) for the Class of Class IV-A-2 Certificates, the product 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 and Net Deferred Interest on the prior
Distribution Date, (2) for the Class IV-A-1 Certificates, the product of (i) the Net Rate Cap for such
Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the prior Distribution Date and (3) for all Classes of Class M
and Class B Certificates, the product for each Class of (i) the Net Rate Cap applicable to the Class IV-A
Certificates, stated as a monthly interest rate, applicable for distributions to be made on such Distribution
Date, (ii) the aggregate Certificate Principal Balance for such Class after distributions and the allocation
of Realized Losses and Net Deferred Interest on the prior Distribution Date and (iii) j0 and (B) U0*N0.
(2)Ψ1 = the lesser of (A) the sum of (1) for the Class IV-A-2 Certificates, the product 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 and Net Deferred
Interest to be made on such Distribution Date, (2) for the Class IV-A-1 Certificates, the product of (i) the
Net Rate Cap for such Class, stated as a monthly interest rate, 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 and Net Deferred Interest on the such
Distribution Date and (3) for all Classes of Class M and Class B Certificates of the product for each
Class of (i) the Net Rate Cap applicable to the Class IV-A Certificates, stated as a monthly interest rate,
applicable for distributions to be made on the next succeeding Distribution Date, (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the allocation of Realized Losses and
Net Deferred Interest to be made on such Distribution Date and (iii) j1 and (B) U1*N1.
Then, based on the foregoing definitions:
ΔY26 = ((2)π/2){ (2)Ψ0U1 - (2)Ψ1U0)/U0U1};
ΔY27 = (2)πΔN - ΔY26; and
ΔY28 = ΔY27,
if both ΔY26 and ΔY27, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY27, as so determined, is negative, then
ΔY27 = 0;
ΔY26 = (2)π{ (2)Ψ1U0N0 - (2)Ψ0U1N1}/{2U1U0Q1 - (2)Ψ1U0};
ΔY28 = ΔY27.
(2) If ΔY26, as so determined, is negative, then
ΔY26 = 0;
ΔY27 = (2)π{ (2)Ψ1U0N0 - (2)Ψ0U1N1}/{ (2)Ψ1U0}; and
ΔY28 = ΔY27.
ΔY22 = ΔN - ΔY23 - ΔY24 - ΔY25 - ΔY26 - ΔY27 - ΔY28 - J (ΔY29 - ΔY30 - ΔY31 ).
For purposes of the succeeding formulas the following symbols shall have the meanings set forth below:
ε = (Y29 + Y30)/O0. The initial value of ε on the Closing Date for use on the first Distribution
Date shall be 0.0001.
ε0 = the lesser of (A) the sum of (1) for all Classes of Class A Certificates of the product for
each Class of (i) the Net Rate Cap, stated as a monthly rate, 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 Net Deferred Interest and Realized Losses on the prior Distribution Date
and (2) for all Classes of Class M and Class B 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 Net Deferred Interest and Realized Losses on the prior Distribution Date
and (B) V0*O0.
ε1 = the lesser of (A) the sum of (1) for all Classes of Class A Certificates of the product for
each Class of (i) the Net Rate Cap, stated as a monthly interest rate, 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 Net Deferred Interest and Realized Losses to be made on such
Distribution Date and (2) for all Classes of Class M and Class B 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 Net Deferred Interest
and Realized Losses to be made on such Distribution Date and (B) V1*O1.
Then, based on the foregoing definitions:
ΔY29 = (ε/2){( ε0V1 - ε1V0)/V0V1};
ΔY30 = εΔO - ΔY29; and
ΔY31 = ΔY30.
if both ΔY29 and ΔY30, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY30, as so determined, is negative, then
ΔY30 = 0;
ΔY29 = ε{ ε1V0O0 - ε0V1O1}/{2V1V0O1 - ε1V0}; and
ΔY31 = ΔY30.
(2) If ΔY29, as so determined, is negative, then
ΔY29 = 0;
ΔY30 = ε{ ε1V0O0 - ε0V1O1}/{ ε1V0}; and
ΔY31 = ΔY30.
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCATED HERETO AND INCREASED TO THE EXTENT OF NET DEFERRED INTEREST ALLOCATED HERETO AS SET FORTH IN THE AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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Certificate No. 1 |
Adjustable Pass-Through Rate |
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Class A Senior |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$___________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: $____________ |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: _____________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class A Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. ("▇▇▇▇ ▇▇"), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the Business Day immediately preceding the related Distribution Date so long as such Certificate 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), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount (of interest, if any) required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice. The initial Current Principal Amount of this Certificate is set forth above. The Current Principal Amount hereof will be reduced to the extent of distributions allocable to principal hereon and Realized Losses allocated hereto and will be increased to the extent of Net Deferred Interest allocated thereto, in each case, as set forth in the Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Servicer, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at
the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES AND THE SENIOR CLASS X CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCATED HERETO AND INCREASED TO THE EXTENT OF NET DEFERRED INTEREST ALLOCATED HERETO AS SET FORTH IN THE AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS M CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND ▇▇▇▇▇'▇, (II) IT IS NOT A PLAN OR INVESTING WITH “PLAN ASSETS”?OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
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Certificate No.1 |
Adjustable Pass-Through Rate |
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Class M Subordinate |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$___________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: $__________ |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class M Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. ("▇▇▇▇ ▇▇"), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the Business Day immediately preceding the related Distribution Date so long as such Certificate 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), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount (of interest, if any) required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The initial Current Principal Amount of this Certificate is set forth above. The Current Principal Amount hereof will be reduced to the extent of distributions allocable to principal hereon and Realized Losses allocated hereto and will be increased to the extent of Net Deferred Interest allocated thereto, in each case, as set forth in the Agreement.
Each beneficial owner of a Class M Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) such Certificate is rated at least "BBB-" or its equivalent by Fitch, S&P and ▇▇▇▇▇'▇, (ii) it is not a Plan or investing with “plan assets” of any Plan, (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Servicer, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS B-[1][2][3] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS X AND THE CLASS M CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCATED HERETO AND INCREASED TO THE EXTENT OF NET DEFERRED INTEREST ALLOCATED HERETO AS SET FORTH IN THE AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS B-[1][2][3] CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND ▇▇▇▇▇'▇, (II) IT IS NOT A PLAN OR INVESTING WITH “PLAN ASSETS”? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
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Certificate No.1 |
Adjustable Pass-Through Rate |
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Class B-[1][2][3] Subordinate |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$______________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: $_____________ |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class B-[1][2][3] Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the Business Day immediately preceding the related Distribution Date so long as such Certificate 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), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice. The initial Current Principal Amount of this Certificate is set forth above. The Current Principal Amount hereof will be reduced to the extent of distributions allocable to principal hereon and Realized Losses allocated hereto and will be increased to the extent of Net Deferred Interest allocated thereto, in each case, as set forth in the Agreement.
Each beneficial owner of a Class B-[1][2][3] Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) such Certificate is rated at least "BBB-" or its equivalent by Fitch, S&P and ▇▇▇▇▇'▇, (ii) it is not a Plan or investing with “plan assets” of any Plan, (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class B-[1][2][3] Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-4-1
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
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 AND THE
SERVICER 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 SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) 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 ▇▇▇▇▇▇▇ MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) 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 UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
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Certificate No.1 |
Percentage Interest: 100% |
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Class R |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$_______ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$_______ |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class R Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Each Holder of this Certificate will be deemed to have agreed to be bound by the restrictions set forth in the Agreement to the effect that (i) each person holding or acquiring any ownership interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any ownership interest in this Certificate will be conditioned upon the delivery to the Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any ownership interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any ownership interest in this Certificate in violation of such restrictions, then the Seller will have the right, in its sole discretion and without notice to the Holder of this Certificate, to sell this Certificate to a purchaser selected by the Seller, which purchaser may be the Seller, or any affiliate of the Seller, on such terms and conditions as the Seller may choose.
The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of the related Distribution Date, an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of (i) if such transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b) to a transferee that is an “Institutional Accredited Investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder’s prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1 or F-2, as applicable, and (ii) if requested by the Trustee, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Seller or the Trustee in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder’s prospective transferee upon which such Opinion of Counsel is based. Neither the Seller nor the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee and the Seller against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
No transfer of this Class R Certificate will be made unless the Trustee has received either (i) opinion of counsel for the benefit of the Trustee and the Servicer and which they may rely which is satisfactory to the Trustee that the purchase of this certificate is permissible under local 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 (“ERISA”), and Section 4975 of the Internal Revenue Code, as amended (the “Code”) and will not subject the Servicer or the Trustee to any obligation or liability in addition to those undertaken in the Agreement or (ii) a representation letter stating that the transferee is not acquiring 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 ERISA, and/or Section 4975 of the Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The
exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-4-2
FORM OF CLASS R-X CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
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 AND THE SERVICER 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 SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) 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 ▇▇▇▇▇▇▇ MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) 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 UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
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Certificate No.1 |
Percentage Interest: 100% |
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Class R-X |
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Date of Pooling and Servicing Agreement and Cut-off Date: October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: $_______ |
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First Distribution Date: November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: $_______ |
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Servicer: EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5 | ||
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MORTGAGE PASS-THROUGH CERTIFICATE | ||
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SERIES 2005-AR5 | ||
evidencing a fractional undivided interest in the distributions allocable to the Class R-X Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Each Holder of this Certificate will be deemed to have agreed to be bound by the restrictions set forth in the Agreement to the effect that (i) each person holding or acquiring any ownership interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any ownership interest in this Certificate will be conditioned upon the delivery to the Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any ownership interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any ownership interest in this Certificate in violation of such restrictions, then the Seller will have the right, in its sole discretion and without notice to the Holder of this Certificate, to sell this Certificate to a purchaser selected by the Seller, which purchaser may be the Seller, or any affiliate of the Seller, on such terms and conditions as the Seller may choose.
The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of the related Distribution Date, an amount equal to the
product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of (i) if such transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b) to a transferee that is an “Institutional Accredited Investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder’s prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1 or F-2, as applicable, and (ii) if requested by the Trustee, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Seller or the Trustee in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder’s prospective transferee upon which such Opinion of Counsel is based. Neither the Seller nor the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee and the Seller against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
No transfer of this Class R-X Certificate will be made unless the Trustee has received either (i) opinion of counsel for the benefit of the Trustee and the Servicer and which they may rely which is satisfactory to the Trustee that the purchase of this certificate is permissible under local 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 (“ERISA”), and Section 4975 of the Internal Revenue Code, as amended (the “Code”) and will not subject the Servicer or the Trustee to any obligation or liability in addition to those undertaken in the Agreement or (ii) a representation letter stating that the transferee is not acquiring 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 ERISA, and/or Section 4975 of the Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the
EXHIBIT A-5
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).
THE PRINCIPAL BALANCE OF THE PRINCIPAL COMPONENT OF THIS CERTIFICATE WILL BE DECREASED TO THE EXTENT OF DISTRIBUTIONS ALLOCABLE TO PRINCIPAL HEREON AND TO REALIZED LOSSES ALLOCABLE HERETO. IN ADDITION, IN THE EVENT THAT INTEREST ACCRUED ON THE NOTIONAL AMOUNT OF THIS CERTIFICATE IS REDUCED AS A RESULT OF THE ALLOCATION OF NET DEFERRED INTEREST ON THE RELATED MORTGAGE LOANS, AS DESCRIBED IN THE AGREEMENT, THE PRINCIPAL BALANCE OF THE PRINCIPAL COMPONENT OF THIS CERTIFICATE WILL INCREASE BY THE AMOUNT OF SUCH REDUCTION. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE NOTIONAL AMOUNT AND PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS NOTIONAL AMOUNT AND PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
EACH BENEFICIAL OWNER OF A CLASS X CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND ▇▇▇▇▇'▇, (II) IT IS NOT A PLAN OR INVESTING WITH “PLAN ASSETS”? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
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Certificate No.1 |
Adjustable Pass-Through Rate |
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Class X Senior |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Notional Amount of the Certificates as of the Cut-off Date: |
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$__________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Notional Amount of this Certificate as of the Cut-off Date: |
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$__________ |
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Initial Principal Balance of the Principal Component of this Certificate as of the Cut-off Date: $0 |
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Servicer: |
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EMC Mortgage Company |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class X Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the Business Day immediately preceding the related Distribution Date so long as such Certificate 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), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Notional Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice. Each of the initial Notional Amount of this Certificate and the initial principal balance of the principal component of this Certificate is set forth above. The principal balance of the principal component of this Certificate will be reduced to the extent of distributions allocable to principal hereon and any Realized Losses allocable hereto. In the event that interest accrued on the Notional Amount of this Certificate is reduced as a result of the allocation of Net Deferred Interest on the related Mortgage Loans, as described in the Agreement, the principal balance of the principal component of this Certificate will increase by the amount of such reduction.
Each beneficial owner of a Class X Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) such Certificate is rated at least "BBB-" or its equivalent by Fitch, S&P and ▇▇▇▇▇'▇, (ii) it is not a Plan or investing with “plan assets” of any Plan, (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more
new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS M-X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).
THE PRINCIPAL BALANCE OF THE PRINCIPAL COMPONENT OF THIS CERTIFICATE WILL BE DECREASED TO THE EXTENT OF DISTRIBUTIONS ALLOCABLE TO PRINCIPAL HEREON AND TO REALIZED LOSSES ALLOCABLE HERETO. IN ADDITION, IN THE EVENT THAT INTEREST ACCRUED ON THE NOTIONAL AMOUNT OF THIS CERTIFICATE IS REDUCED AS A RESULT OF THE ALLOCATION OF NET DEFERRED INTEREST ON THE RELATED MORTGAGE LOANS, AS DESCRIBED IN THE AGREEMENT, THE PRINCIPAL BALANCE OF THE PRINCIPAL COMPONENT OF THIS CERTIFICATE WILL INCREASE BY THE AMOUNT OF SUCH REDUCTION. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE NOTIONAL AMOUNT AND PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS NOTIONAL AMOUNT AND PRINCIPAL BALANCE BY INQUIRY NAMED HEREIN.
EACH BENEFICIAL OWNER OF A CLASS M-X CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND ▇▇▇▇▇'▇, (II) IT IS NOT A PLAN OR INVESTING WITH “PLAN ASSETS”? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
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Certificate No.1 |
Adjustable Pass-Through Rate |
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Class M-X Subordinate |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Notional Amount of the Certificates as of the Cut-off Date: |
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$__________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Notional Amount of this Certificate as of the Cut-off Date: |
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$__________ |
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Initial Principal Balance of the Principal Component of this Certificate as of the Cut-off Date: $0 |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class M-X Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the Business Day immediately preceding the related Distribution Date so long as such Certificate 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), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Notional Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice. Each of the initial Notional Amount of this Certificate and the initial principal balance of the principal component of this Certificate is set forth above. The principal balance of the principal component of this Certificate will be reduced to the extent of distributions allocable to principal hereon and any Realized Losses allocable hereto. In the event that interest accrued on the Notional Amount of this Certificate is reduced as a result of the allocation of Net Deferred Interest on the related Mortgage Loans, as described in the Agreement, the principal balance of the principal component of this Certificate will increase by the amount of such reduction.
Each beneficial owner of a Class M-X Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) such Certificate is rated at least "BBB-" or its equivalent by Fitch, S&P and ▇▇▇▇▇'▇, (ii) it is not a Plan or investing with “plan assets” of any Plan, (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more
new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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CERTIFICATE OF AUTHENTICATION
This is one of the Class M-X Certificates referred to in the within-mentioned Agreement.
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
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Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
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By:________________________________ |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS B-[4][5][6] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M, CLASS X, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND INCREASED TO THE EXTENT OF NET DEFERRED INTEREST ALLOCATED THERETO AS SET FORTH IN THE AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
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 AND THE SERVICER 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 SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
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Certificate No.1 |
Adjustable Pass-Through Rate |
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Class B-[4][5][6] Crossed Subordinate |
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Date of Pooling and Servicing Agreement and Cut-off Date: |
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October 1, 2005 |
Aggregate Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$__________ |
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First Distribution Date: |
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November 25, 2005 |
Initial Current Principal Amount of this Certificate as of the Cut-off Date: |
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$__________ |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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November 25, 2045 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class B-[4][5][6] Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting
of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period from and including the preceding Distribution Date (as hereinafter defined) (or in the case of the first Distribution Date, from the Closing Date) to and including the day prior to the current Distribution Date on the Current Principal Amount hereof at a per annum rate equal to the Pass-Through Rate set forth in the Agreement. The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of the related Distribution Date), an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in the month following the latest scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the Current Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice. The initial Current Principal Amount of this Certificate is set forth above. The Current Principal Amount hereof will be reduced to the extent of distributions allocable to principal hereon and Realized Losses allocated hereto and will be increased to the extent of Net Deferred Interest allocated thereto, in each case, as set forth in the Agreement.
No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of (i) if such transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b) to a transferee that is an “Institutional Accredited Investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder’s prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1 or F-2, as applicable, and (ii) if requested by the Trustee, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Seller, the Trustee or the Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder’s prospective transferee upon which such Opinion of Counsel is based. None of the Seller or the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee and the Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
No transfer of this Class B-[4][5][6] Certificate will be made unless the Trustee has received either (i) opinion of counsel for the benefit of the Trustee, and which it may rely which is satisfactory to the Trustee that the purchase of this certificate is permissible under local 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 (“ERISA”), and Section 4975 of the Internal Revenue Code, as amended (the “Code”) and will not subject the Servicer or the Trustee to any obligation or liability in addition to those undertaken in the Agreement or (ii) a representation letter stating that the transferee is not acquiring 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 ERISA, and/or Section 4975 of the Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by EMC, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
Not in its individual capacity but solely as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-[4][5][6] Certificates referred to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS XP CERTIFICATE
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 AND THE SERVICER 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 SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
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Certificate No.1 |
Aggregate Initial Current Notional Amount of the Class XP Certificates as of the Cut-off Date: |
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$__________ |
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Class XP Certificate |
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Date of Pooling and Servicing Agreement |
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and Cut-off Date: |
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October 1, 2005 |
Percentage Interest of this Certificate: |
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_____% |
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First Distribution Date: |
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November 25, 2005 |
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Servicer: |
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EMC Mortgage Corporation |
CUSIP: ___________ |
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Assumed Final Distribution Date: |
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June 25, 2011 |
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GREENPOINT MORTGAGE FUNDING TRUST 2005-AR5
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-AR5
evidencing a fractional undivided interest in the distributions allocable to the Class XP Certificates with respect to a Trust Fund consisting primarily of a pool of adjustable interest rate mortgage loans secured by first liens on one-to-four family residential properties (the “Mortgage Loans”) and sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc. ("▇▇▇▇ ▇▇"), the Servicer or the Trustee referred to below or any of their affiliates or any other person. Neither this Certificate nor the underlying Mortgage Loans are guaranteed or insured by any governmental entity or by ▇▇▇▇ ▇▇, the Servicer or the Trustee or any of their affiliates or any other person. None of ▇▇▇▇ ▇▇, the Servicer or any of their affiliates will have any obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in a trust (the “Trust Fund”) primarily consisting of the Mortgage Loans sold by ▇▇▇▇ ▇▇. The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as servicer of the Mortgage Loans (the “Servicer,” which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Seller”), EMC and ▇▇▇▇▇ Fargo, National Association, as trustee (the “Trustee”), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound.
The Trustee will distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the immediately following Business Day (each, a “Distribution Date”), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of the related Distribution Date, an amount equal to the product of the Fractional Undivided Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Certificates of the same Class as this Certificate.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person so requests by notifying the Trustee in writing as specified in the Agreement, by wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of (i) if such transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b) to a transferee that is an “Institutional Accredited Investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder’s prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1 or F-2, as applicable, and (ii) if requested by the Trustee, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Seller, the Trustee or the Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder’s prospective transferee upon which such Opinion of Counsel is based. None of the
Seller or the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee, the Seller and the Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
No transfer of this Class XP Certificate will be made unless the Trustee has received either (i) opinion of counsel for the benefit of the Trustee and the Servicer and which they may rely which is satisfactory to the Trustee that the purchase of this certificate is permissible under local 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 (“ERISA”), and Section 4975 of the Internal Revenue Code, as amended (the “Code”) and will not subject the Servicer or the Trustee to any obligation or liability in addition to those undertaken in the Agreement or (ii) a representation letter stating that the transferee is not acquiring 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 ERISA, and/or Section 4975 of the Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated as set forth on the face hereof (the “Certificates”). The Certificates, in the aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the Trust Fund for payment hereunder and that the Trustee is not liable to the Certificateholders for any amount payable under this Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for the interests, rights and limitations of rights, benefits, obligations and duties evidenced hereby, and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided: (i) the amendment thereof and the modification of the rights and obligations of the Seller, the Servicer and the Trustee and the rights of the Certificateholders under the Agreement from time to time by EMC, the Seller, the Servicer and the Trustee, and (ii) the amendment thereof by the Servicer and the Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage of the Fractional Undivided Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof in certain limited circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate will be registered with the Trustee upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee for
such purposes, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in authorized denominations representing a like aggregate Fractional Undivided Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without coupons in the Classes and denominations specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, this Certificate is exchangeable for one or more new Certificates evidencing the same Class and in the same aggregate Fractional Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such registration of transfer, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Seller, the Servicer, the Trustee and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Seller, the Servicer, the Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby (other than the obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall terminate upon the earlier of (i) the later of the mailing of the final payment or other liquidation (or Advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund or the disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan, or (ii) the optional repurchase by the party named in the Agreement of all the Mortgage Loans and all related REO Property remaining in the Trust in accordance with the terms of the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the Cut-off Date Balance or (ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost or that a substantial risk exists that such REMIC status will be lost for the then-current taxable year. The exercise of such right will effect the early retirement of the Certificates. In no event, however, will the Trust Fund created by the Agreement continue beyond the expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee by manual signature, this Certificate shall not be entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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Dated: October 31, 2005 |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION |
Not in its individual capacity but solely as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of ▇▇▇▇▇ Fargo Bank, National Association, not in its individual capacity but solely as Trustee
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto __________________________________ (Please print or typewrite name and address including postal zip code of assignee) a Fractional Undivided Interest evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like denomination and Class, to the above named assignee and deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of _________________________ account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to _____________________________________________.
This information is provided by __________________, the assignee named above, or ________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[On File With Trustee]
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EXHIBIT C |
[RESERVED]
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EXHIBIT D |
REQUEST FOR RELEASE OF DOCUMENTS
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To: |
▇▇▇▇▇ Fargo Bank, National Association |
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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RE: |
Pooling and Servicing Agreement, dated as of October 1, 2005 among Structured Asset Mortgage Investments II Inc., as depositor, ▇▇▇▇▇ Fargo Bank, National Association as trustee and EMC Mortgage Corporation, as servicer and seller, issuing GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 |
In connection with the administration of the Mortgage Loans held by you pursuant to the above-captioned Pooling and Servicing Agreement, we request the release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
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1. Mortgage Paid in Full and proceeds have been deposited into the Custodial Account |
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Foreclosure | |||
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Substitution | |||
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Other Liquidation | |||
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Nonliquidation |
Reason: | ||
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6. |
California Mortgage Loan paid in full | |||
By:
(authorized signer)
Issuer:
Address:
Date:
EXHIBIT E
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section 860E(e)(4) of the Internal Revenue Code of 1986, as amended, and for other purposes
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[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (record or beneficial owner of the GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5, Class R Certificates) (the “Class R Certificates”) (the A Owner@), a [savings institution] [corporation] duly organized and existing under the laws of [the State of _____] [the United States], on behalf of which he makes this affidavit.
2. That the Owner (i) is not and will not be as of [Closing Date][date of purchase] a “disqualified organization” within the meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended (the “Code”) or an “electing large partnership” within the meaning of Section 775 of the Code, (ii) will endeavor to remain other than a disqualified organization and an electing large partnership for so long as it retains its ownership in the Class R Certificates and (iii) is acquiring the Class R Certificates for its own account or for the account of another Owner from which it has received an affidavit and agreement in substantially the same form as this affidavit and agreement. (For this purpose, a “disqualified organization” means an electing large partnership under Section 775 of the Code, the United States, any state or political subdivision thereof, any agency or instrumentality of any of the foregoing (other than an instrumentality all of the activities of which are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of whose board of directors is not selected by any such governmental entity) or any foreign government, international organization or any agency or instrumentality of such foreign government or organization, any rural electric or telephone cooperative, or any organization (other than certain farmers’ cooperatives) that is generally exempt from federal income tax unless such organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of Class R Certificates to disqualified organizations or electing large partnerships under the Code, that applies to all transfers of Class R Certificates after March 31, 1988; (ii) that such tax would be on the transferor (or, with respect to transfers to electing large partnerships, on each such partnership), or, if such transfer is through an agent (which person includes a broker, nominee or middleman) for a disqualified organization, on the agent; (iii) that the person (other than with respect to transfers to electing large partnerships) otherwise liable for the tax shall be relieved of liability for the tax if the transferee furnishes to such person an affidavit that the transferee is not a disqualified organization and, at the time of transfer, such person does not have actual knowledge that the affidavit is false; and (iv) that the Class R Certificates may be “noneconomic residual interests” within the meaning of Treasury regulations promulgated pursuant to the Code
and that the transferor of a noneconomic residual interest will remain liable for any taxes due with respect to the income on such residual interest, unless no significant purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a “pass-through entity” holding Class R Certificates if either the pass-through entity is an electing large partnership under Section 775 of the Code or if at any time during the taxable year of the pass-through entity a disqualified organization is the record holder of an interest in such entity. (For this purpose, a “pass through entity” includes a regulated investment company, a real estate investment trust or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the transfer of any Class R Certificates unless the transferee, or the transferee’s agent, delivers to it an affidavit and agreement, among other things, in substantially the same form as this affidavit and agreement. The Owner expressly agrees that it will not consummate any such transfer if it knows or believes that any of the representations contained in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of the Class R Certificates and the provisions of Section 5.05 of the Pooling and Servicing Agreement under which the Class R Certificates were issued. The Owner expressly agrees to be bound by and to comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Class R Certificates will only be owned, directly or indirectly, by an Owner that is not a disqualified organization.
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The Owner’s Taxpayer Identification Number is # _______________. |
9. This affidavit and agreement relates only to the Class R Certificates held by the Owner and not to any other holder of the Class R Certificates. The Owner understands that the liabilities described herein relate only to the Class R Certificates.
10. That no purpose of the Owner relating to the transfer of any of the Class R Certificates by the Owner is or will be to impede the assessment or collection of any tax; in making this representation, the Owner warrants that the Owner is familiar with (i) Treasury Regulation Section 1.860E-1 (c) and recent amendments thereto, effective as of August 19, 2002, and (ii) the preamble describing the adoption of the amendments to such regulation, which is attached hereto as Exhibit 1.
11. That the Owner has no present knowledge or expectation that it will be unable to pay any United States taxes owed by it so long as any of the Certificates remain outstanding. In this regard, the Owner hereby represents to and for the benefit of the person from whom it acquired the Class R Certificates that the Owner intends to pay taxes associated with holding such Class R Certificates as they become due, fully understanding that it may incur tax liabilities in excess of any cash flows generated by the Class R Certificates.
12. That the Owner has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as any of the Class R Certificates remain outstanding.
13. The Owner is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in, or under the laws of, the United States or any political subdivision thereof, or an estate or trust whose income from sources without the United States is includable in gross income for United States federal income tax purposes regardless of its connection with the conduct of a trade or business within the United States.
14. The Owner hereby agrees that it will not cause income from the Class R Certificates to be attributable to a foreign permanent establishment or fixed base (within the meaning of an applicable income tax treaty) of the Owner or another United States taxpayer.
15. (a) The Purchaser hereby certifies, represents and warrants to, and covenants with the Company and the Trustee that the following statements in (1) or (2) are accurate:
(1) The Certificates (i) are not being acquired by, and will not be transferred to, any employee benefit plan within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or other retirement arrangement, including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank collective investment funds and insurance company general or separate accounts in which such plans, accounts or arrangements are invested, that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being acquired with “plan assets” of a Plan within the meaning of the Department of Labor (“DOL”) regulation, 29 C.F.R. ? 2510.3-101 or otherwise under ERISA, and (iii) will not be transferred to any entity that is deemed to be investing plan assets within the meaning of the DOL regulation, 29 C.F.R. ? 2510.3-101 or otherwise under ERISA;
(2) The purchase of Certificates is permissible under applicable law, will not constitute or result in any prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Company or the Trustee to any obligation in addition to those undertaken in the Pooling and Servicing Agreement and, with respect to each source of funds (“Source”) being used by the Purchaser to acquire the Certificates, each of the following statements is accurate: (a) the Purchaser is an insurance company; (b) the Source is assets of the Purchaser’s “general account;” (c) the conditions set forth in Prohibited Transaction Class Exemption (“PTCE”) 95-60 issued by the DOL have been satisfied and the purchase, holding and transfer of Certificates by or on behalf of the Purchaser are exempt under PTCE 95-60; and (d) the amount of reserves and liabilities for such general account contracts held by or on behalf of any Plan does not exceed 10% of the total reserves and liabilities of such general account plus surplus as of the date hereof (for purposes of this clause, all Plans maintained by the same employer (or affiliate thereof) or employee organization are deemed to be a single Plan) in connection with its purchase and holding of such Certificates; or
(b) The Owner will provide the Trustee and the Company with an opinion of counsel acceptable to and in form and substance satisfactory to the Trustee and the Company to the effect that the purchase of Certificates is permissible under applicable law, will not constitute
or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Trustee or the Company to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in the Pooling and Servicing Agreement.
In addition, the Owner hereby certifies, represents and warrants to, and covenants with, the Company and the Trustee that the Owner will not transfer such Certificates to any Plan or person unless either such Plan or person meets the requirements set forth in either (a) or (b) above.
Capitalized terms used but not defined herein shall have the meanings assigned
in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on its behalf, pursuant to authority of its Board of Directors, by its [Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By:
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of distributions]
Address of Investor for receipt of tax information:
Personally appeared before me the above-named [Name of Officer], known or proved to me to be the same person who executed the foregoing instrument and to be the [Title of Officer] of the Investor, and acknowledged to me that he executed the same as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
EXHIBIT F-1
FORM OF INVESTMENT LETTER (NON-RULE 144A)
______________,200___
Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: GreenPoint Mortgage Funding Trust 2005-AR5
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Re: |
GreenPoint Mortgage Funding Trust 2005-AR5 |
Mortgage Pass-Through Certificates, Series 2005-AR5
Ladies and Gentlemen:
______________ (the “Purchaser”) intends to purchase from ______________ (the “Seller”) $_________ initial Certificate Principal Balance of Mortgage Pass-Through Certificates, Series 2005-AR5, Class _____ (the “Certificates”), issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of October 1, 2005 among Structured Asset Mortgage Investments II Inc., as depositor (the “Seller”), EMC Mortgage Corporation, as servicer and seller and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the “Trustee”). All terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement. The Purchaser hereby certifies, represents and warrants to, and covenants with, the Seller and the Trustee that:
1. The Purchaser understands that (a) the Certificates have not been and will not be registered or qualified under the Securities Act of 1933, as amended (the “Act”) or any state securities law, (b) the Seller is not required to so register or qualify the Certificates, (c) the Certificates may be resold only if registered and qualified pursuant to the provisions of the Act or any state securities law, or if an exemption from such registration and qualification is available, (d) the Pooling and Servicing Agreement contains restrictions regarding the transfer of the Certificates and (e) the Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for investment only and not with a view to or for sale in connection with any distribution thereof in any manner that would violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters, and, in particular, in such matters related to securities similar to the Certificates, such that it is capable of evaluating the merits and risks of investment in the Certificates, (b) able to bear the economic risks of such an investment and (c) an “accredited investor” within the meaning of Rule 501 (a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to review (a) a copy of the Pooling and Servicing Agreement and (b) such other information concerning the Certificates, the Mortgage Loans and the Seller as has been requested by the Purchaser from the Seller or the Seller and is relevant to the Purchaser’s decision to purchase the Certificates. The Purchaser has had any questions arising from such review answered by the Seller or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will it authorize any person to (a) offer, pledge, sell, dispose of or otherwise transfer any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicit any offer to buy or to accept a pledge, disposition of other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approach or negotiate with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) make any general solicitation by means of general advertising or in any other manner or (e) take any other action, that (as to any of (a) through (e) above) would constitute a distribution of any Certificate under the Act, that would render the disposition of any Certificate a violation of Section 5 of the Act or any state securities law, or that would require registration or qualification pursuant thereto. The Purchaser will not sell or otherwise transfer any of the Certificates, except in compliance with the provisions of the Pooling and Servicing Agreement.
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6. The Purchaser (if the Certificate is not rated at least “BBB-” or its equivalent by Fitch, S&P or ▇▇▇▇▇’▇):
(a) is not an employee benefit or other plan subject to the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any Certificate with "plan assets" of any Plan within the meaning of the Department of Labor ("DOL") regulation at 29 C.F.R. §2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to purchase the Certificates is an “insurance company general account” (within the meaning of DOL Prohibited Transaction Class Exemption (“PTCE”) 95-60), and the purchase is being made in reliance upon the availability of the exemptive relief afforded under Sections I and III of PTCE 95-60.]
In addition, the Purchaser hereby certifies, represents and warrants to, and covenants with, the Company and the Trustee that the Purchaser will not transfer such Certificates to any Plan or person unless such Plan or person meets the requirements set forth in either 6(a) or (b) above.
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Very truly yours, |
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[PURCHASER] |
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8
EXHIBIT F-2
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the “Seller”), intends to transfer the Rule 144A Securities described above to the undersigned buyer (the “Buyer”).
In connection with such transfer and in accordance with the agreements pursuant to which the Rule 144A Securities were issued, the Seller hereby certifies the following facts: Neither the Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security from, or otherwise approached or negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action, that would constitute a distribution of the Rule 144A Securities under the Securities Act of 1933, as amended (the “1933 Act”), or that would render the disposition of the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration pursuant thereto, and that the Seller has not offered the Rule 144A Securities to any person other than the Buyer or another “qualified institutional buyer” as defined in Rule 144A under the 1933 Act.
The Buyer warrants and represents to, and covenants with, the Seller, the Trustee and the Servicer (as defined to the Pooling and Servicing Agreement, dated as of October 1, 2005 (the “Agreement”), among the Company, EMC and ▇▇▇▇▇ Fargo Bank, N.A as trustee (the “Trustee”)) as follows:
The Buyer understands that the Rule 144A Securities have not been registered under the 1933 Act or the securities laws of any state.
The Buyer considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Rule 144A Securities.
The Buyer has been furnished with all information regarding the Rule 144A Securities that it has requested from the Seller, the Trustee or the Servicer.
Neither the Buyer nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security from, or otherwise approached or negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action, that would constitute a distribution of the Rule 144A Securities under the 1933 Act or that would render the disposition of the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Rule 144A Securities.
The Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A under the 1933 Act and has completed either of the forms of certification to that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities for its own account or the accounts of other qualified institutional buyers, understands that such Rule 144A Securities may be resold, pledged or transferred only (i) to a person reasonably believed to be a qualified institutional buyer that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the 1933 Act.
[3. The Buyer (if the Rule 144A Securities are not rated at least “BBB-” or its equivalent by Fitch, S&P or ▇▇▇▇▇’▇):
is not an employee benefit or other plan subject to the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (a “Plan”), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any Certificate with “plan assets” of any Plan within the meaning of the Department of Labor (“DOL”) regulation at 29 C.F.R. § 2510.3-101; or
is an insurance company, the source of funds to be used by it to purchase the Certificates is an “insurance company general account” (within the meaning of DOL Prohibited Transaction Class Exemption (“PTCE”) 95-60), and the purchase is being made in reliance upon the availability of the exemptive relief afforded under Sections I and III of PTCE 95-60.]
4. This document may be executed in one or more counterparts and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed to be an original; such counterparts, together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of the date set forth below.
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Taxpayer Identification |
Taxpayer Identification: |
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Date: |
ANNEX 1 TO EXHIBIT F
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A Investment Representation to which this Certification is attached:
As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive officer of the Buyer.
In connection with purchases by the Buyer, the Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary basis $ in securities (except for the excluded securities referred to below) as of the end of the Buyer’s most recent fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or charitable organization described in Section 501(c)(3) of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution organized under the laws of any State, territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements.
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State or territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974.
Investment Adviser. The Buyer is an investment adviser registered under the Investment Advisers Act of 1940.
SBIC. The Buyer is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
Business Development Company. The Buyer is a business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust company and whose participants are exclusively (a) plans established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees, or (b) employee benefit plans within the meaning of Title I of the Employee Retirement Income Security Act of 1974, but is not a trust fund that includes as participants individual retirement accounts or H.R. 10 plans.
The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Buyer, (ii) securities that are part of an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Buyer, the Buyer used the cost of such securities to the Buyer and did not include any of the securities referred to in the preceding paragraph. Further, in determining such aggregate amount, the Buyer may have included securities owned by subsidiaries of the Buyer, but only if such subsidiaries are consolidated with the Buyer in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Buyer’s direction. However, such securities were not included if the Buyer is a majority-owned, consolidated subsidiary of another enterprise and the Buyer is not itself a reporting company under the Securities Exchange Act of 1934.
The Buyer acknowledges that it is familiar with Rule 144A and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Buyer may be in reliance on Rule 144A.
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Will the Buyer be purchasing the Rule 144A |
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Yes |
No |
Securities only for the Buyer’s own account? |
If the answer to the foregoing question is “no”, the Buyer agrees that, in connection with any purchase of securities sold to the Buyer for the account of a third party (including any separate account) in reliance on Rule 144A, the Buyer will only purchase for the account of a third party that at the time is a “qualified institutional buyer” within the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer will not purchase securities for a third party unless the Buyer has obtained a current representation letter from such third party or taken other appropriate steps contemplated by Rule 144A to conclude that such third party independently meets the definition of “qualified institutional buyer” set forth in Rule 144A.
The Buyer will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of this certification as of the date of such purchase.
Print Name of Buyer
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EXHIBIT F-3
FORM OF TRANSFEROR REPRESENTATION LETTER
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, 20 |
Structured Asset Mortgage Investments II Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MORTGAGE PASS-THROUGH CERTIFICATE
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`SERIES 2005-AR5 |
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: GreenPoint Mortgage Funding Trust 2005-AR5
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Re: |
Mortgage Pass-Through Certificates, Series 2005-AR5 |
Ladies and Gentlemen:
In connection with the sale by (the “Seller”) to (the “Purchaser”) of $ Initial Certificate Principal Balance of Mortgage Pass-Through Certificates, Series 2005-AR5 (the “Certificates”) pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2005 (the “Pooling and Servicing Agreement”), among Structured Asset Mortgage Investments II Inc. (the “Company”), EMC Mortgage Corporation (“EMC”) and ▇▇▇▇▇ Fargo Bank, National Association as trustee (the “Trustee”). The Seller hereby certifies, represents and warrants to, and covenants with, the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) has solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) has otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) has made any general solicitation by means of general advertising or in any other manner, or (e) has taken any other action, that (as to any of (a) through (e) above) would constitute a distribution of the Certificates under the Securities Act of 1933 (the “Act”), that would render the disposition of any Certificate a violation of Section 5 of the Act or any state securities law, or that would require registration or qualification pursuant thereto. The
Seller will not act, in any manner set forth in the foregoing sentence with respect to any Certificate. The Seller has not and will not sell or otherwise transfer any of the Certificates, except in compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
(Seller)
By:
Name:
Title:
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to time, the A Agreement=), dated as of October 31, 2005, by and among ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and Servicing Agreement defined below, the A Trustee@), STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., as company (together with any successor in interest, the A Company@), EMC MORTGAGE CORPORATION, as servicer (together with any successor in interest or successor under the Pooling and Servicing Agreement referred to below, the A Servicer@) and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as custodian (together with any successor in interest or any successor appointed hereunder, the A Custodian@).
WITNESSETH THAT:
WHEREAS, the Company, the Servicer and the Trustee have entered into a Pooling and Servicing Agreement, dated as of October 1, 2005, relating to the issuance of GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 (as in effect on the date of this agreement, the A Original Pooling and Servicing Agreement, @ and as amended and supplemented from time to time, the A Pooling and Servicing Agreement=); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for the purposes of receiving and holding certain documents and other instruments delivered by the Company or the Servicer under the Pooling and Servicing Agreement and the Servicers under their respective Servicing Agreements, all upon the terms and conditions and subject to the limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the Trustee the Company, the Servicer and the Custodian hereby agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall have the meanings assigned in the Original Pooling and Servicing Agreement, unless otherwise required by the context herein.
ARTICLE II.
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1. Custodian to Act as Agent: Acceptance of Mortgage Files. The Custodian, as the duly appointed agent of the Trustee for these purposes, acknowledges (subject to any exceptions noted in the Initial Certification referred to in Section 2.3(a) receipt of the
Mortgage Files relating to the Mortgage Loans identified on the schedule attached hereto (the A Mortgage Files@) and declares that it holds and will hold such Mortgage Files as agent for the Trustee, in trust, for the use and benefit of all present and future Certificateholders.
Section 2.2. Recordation of Assignments. If any Mortgage File includes one or more assignments of Mortgage to the Trustee in a state which is specifically excluded from the Opinion of Counsel delivered by the Seller to the Trustee (with a copy to the Custodian) pursuant to the provisions of Section 2.01 of the Pooling and Servicing Agreement, each such assignment shall be delivered by the Custodian to the Company for the purpose of recording it in the appropriate public office for real property records, and the Company, at no expense to the Custodian, shall promptly cause to be recorded in the appropriate public office for real property records each such assignment of Mortgage and, upon receipt thereof from such public office, shall return each such assignment of Mortgage to the Custodian.
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Section 2.3. |
Review of Mortgage Files. |
(1) On or prior to the Closing Date, in accordance with Section 2.02 of the Pooling and Servicing Agreement, the Custodian shall deliver to the Trustee an Initial Certification in the form annexed hereto as Exhibit One evidencing receipt (subject to any exceptions noted therein) of a Mortgage File for each of the Mortgage Loans listed on the Schedule attached hereto (the A Mortgage Loan Schedule@).
(2) Within 90 days of the Closing Date, the Custodian agrees, for the benefit of Certificateholders, to review, in accordance with the provisions of Section 2.02 of the Pooling and Servicing Agreement, each such document, and shall deliver to the Seller and the Trustee an Interim Certification in the form annexed hereto as Exhibit Two to the effect that all such documents have been executed and received and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule, except for any exceptions listed on Schedule A attached to such Interim Certification. The Custodian shall be under no duty or obligation to inspect, review or examine said documents, instruments, certificates or other papers to determine that the same are genuine, enforceable, or appropriate for the represented purpose or that they have actually been recorded or that they are other than what they purport to be on their face.
(3) Not later than 180 days after the Closing Date, the Custodian shall review the Mortgage Files as provided in Section 2.02 of the Pooling and Servicing Agreement and deliver to the Seller and the Trustee a Final Certification in the form annexed hereto as Exhibit Three evidencing the completeness of the Mortgage Files.
(4) In reviewing the Mortgage Files as provided herein and in the Pooling and Servicing Agreement, the Custodian shall make no representation as to and shall not be responsible to verify (i) the validity, legality, enforceability, due authorization, recordability, sufficiency or genuineness of any of the documents included in any Mortgage File or (ii) the collectibility, insurability, effectiveness or suitability of any of the documents in any Mortgage File.
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Upon receipt of written request from the Trustee, the Custodian shall as soon as practicable supply the Trustee with a list of all of the documents relating to the Mortgage Loans missing from the Mortgage Files.
Section 2.4. Notification of Breaches of Representations and Warranties. Upon discovery by the Custodian of a breach of any representation or warranty made by the Company as set forth in the Pooling and Servicing Agreement with respect to a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt written notice to the Company, the Servicer and the Trustee.
Section 2.5. Custodian to Cooperate: Release of Mortgage Files. Upon receipt of written notice from the Trustee that the Mortgage Loan Seller has repurchased a Mortgage Loan pursuant to Article II of the Pooling and Servicing Agreement, and that the purchase price therefore has been deposited in the Custodial Account or the Distribution Account, then the Custodian agrees to promptly release to the Mortgage Loan Seller the related Mortgage File.
Upon the Custodian=s receipt of a request for release (a A Request for Release@) substantially in the form of Exhibit D to the Pooling and Servicing Agreement signed by a Servicing Officer of the Servicer stating that it has received payment in full of a Mortgage Loan or that payment in full will be escrowed in a manner customary for such purposes, the Custodian agrees promptly to release to the Servicer the related Mortgage File. The Company shall deliver to the Custodian and the Custodian agrees to accept the Mortgage Note and other documents constituting the Mortgage File with respect to any Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or foreclosure of any Mortgage Loan, including, for this purpose, collection under any Primary Insurance Policy, the Servicer shall deliver to the Custodian a Request for Release signed by a Servicing Officer requesting that possession of all of the Mortgage File be released to the Servicer and certifying as to the reason for such release and that such release will not invalidate any insurance coverage provided in respect of the Mortgage Loan under any of the Insurance Policies. Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File to the related Servicer. The Servicer shall cause each Mortgage File or any document therein so released to be returned to the Custodian when the need therefore by the related Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been deposited in the Custodial Account or the Distribution Account or (ii) the Mortgage File or such document has been delivered to an attorney, or to a public trustee or other public official as required by law, for purposes of initiating or pursuing legal action or other proceedings for the foreclosure of the Mortgaged Property either judicially or non-judicially, and the Servicer has delivered to the Custodian a certificate of a Servicing Officer certifying as to the name and address of the Person to which such Mortgage File or such document was delivered and the purpose or purposes of such delivery.
At any time that the Servicer is required to deliver to the Custodian a Request for Release, the Servicer shall deliver two copies of the Request for Release if delivered in hard copy or the Servicer may furnish such Request for Release electronically to the Custodian, in which event the Servicing Officer transmitting the same shall be deemed to have signed the Request for Release. In connection with any Request for Release of a Mortgage File because of a
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repurchase of a Mortgage Loan, such Request for Release shall be accompanied by an assignment of mortgage, without recourse, representation or warranty from the Trustee to the Mortgage Loan Seller and the related Mortgage Note shall be endorsed without recourse, representation or warranty by the Trustee (unless such Mortgage Note was a MERS Loan and not endorsed to the Trustee) and be returned to the Mortgage Loan Seller. In connection with any Request for Release of a Mortgage File because of the payment in full of a Mortgage Loan, such Request for Release shall be accompanied by a certificate of satisfaction or other similar instrument to be executed by or on behalf of the Trustee and returned to the related Servicer.
Section 2.6. Assumption Agreements. In the event that any assumption agreement, substitution of liability agreement or sale of servicing agreement is entered into with respect to any Mortgage Loan subject to this Agreement in accordance with the terms and provisions of the Pooling and Servicing Agreement, the Servicer shall notify the Custodian that such assumption or substitution agreement has been completed by forwarding to the Custodian the original of such assumption or substitution agreement, which shall be added to the related Mortgage File and, for all purposes, shall be considered a part of such Mortgage File to the same extent as all other documents and instruments constituting parts thereof.
ARTICLE III.
CONCERNING THE CUSTODIAN
Section 3.1. Custodian as Bailee and Agent of the Trustee. With respect to each Mortgage Note, Mortgage and other documents constituting each Mortgage File which are delivered to the Custodian, the Custodian is exclusively the bailee and agent of the Trustee and has no instructions to hold any Mortgage Note or Mortgage for the benefit of any person other than the Trustee and the Certificateholders and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Except upon compliance with the provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or Mortgage File shall be delivered by the Custodian to the Company or the Servicer or otherwise released from the possession of the Custodian.
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Section 3.2. |
Reserved. |
Section 3.3. Custodian May Own Certificates. The Custodian in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not Custodian.
Section 3.4. Custodian’s Fees and Expenses. The Trustee covenants and agrees to pay to the Custodian from time to time, and the Custodian shall be entitled to, reasonable compensation for all services rendered by it in the exercise and performance of any of the powers and duties hereunder of the Custodian, and the Trustee will pay or reimburse, from amounts held by it in the Distribution Account, the Custodian upon its request for all reasonable expenses, disbursements and advances incurred or made by the Custodian in accordance with any of the provisions of this Agreement (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith or to the extent
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that such cost or expense is indemnified by the Company or the Trust pursuant to the Pooling and Servicing Agreement.
Section 3.5. Custodian May Resign Trustee May Remove Custodian. The Custodian may resign from the obligations and duties hereby imposed upon it as such obligations and duties relate to its acting as Custodian of the Mortgage Loans. Upon receiving such notice of resignation, the Trustee shall either take custody of the Mortgage Files itself and give prompt notice thereof to the Company, the Servicer and the Custodian, or promptly appoint a successor Custodian by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Custodian and one copy to the successor Custodian. If the Trustee shall not have taken custody of the Mortgage Files and no successor Custodian shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Custodian may petition any court of competent jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of the Servicer. In such event, the Trustee shall appoint, or petition a court of competent jurisdiction to appoint, a successor Custodian hereunder. Any successor Custodian shall be a depository institution subject to supervision or examination by federal or state authority, shall be able to satisfy the other requirements contained in Section 3.7 and shall be unaffiliated with the Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a successor Custodian pursuant to any of the provisions of this Section 3.5 shall become effective upon acceptance of appointment by the successor Custodian. The Trustee shall give prompt notice to the Company and the Servicer of the appointment of any successor Custodian. No successor Custodian shall be appointed by the Trustee without the prior approval of the Company and the Servicer.
Section 3.6. Merger or Consolidation of Custodian. Any Person into which the Custodian may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the business of the Custodian, shall be the successor of the Custodian hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 3.7. Representations of the Custodian. The Custodian hereby represents that it is a depository institution subject to supervision or examination by a federal or state authority, has a combined capital and surplus of at least $15,000,000 and is qualified to do business in the jurisdictions in which it will hold any Mortgage File.
ARTICLE IV.
MISCELLANEOUS PROVISIONS
Section 4.1. Notices. All notices, requests, consents and demands and other communications required under this Agreement or pursuant to any other instrument or document delivered hereunder shall be in writing and, unless otherwise specifically provided, may be
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delivered personally, by telegram or telex, or by registered or certified mail, postage prepaid, return receipt requested, at the addresses specified on the signature page hereof (unless changed by the particular party whose address is stated herein by similar notice in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or supplement to this Agreement shall be valid or effective unless the same is in writing and signed by all parties hereto, and none of the Company, the Servicer or the Trustee shall enter into any amendment hereof except as permitted by the Pooling and Servicing Agreement. The Trustee shall give prompt notice to the Custodian of any amendment or supplement to the Pooling and Servicing Agreement and furnish the Custodian with written copies thereof.
Section 4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4. Recordation of Agreement. To the extent permitted by applicable law, this Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Company and at the Trust=s expense, but only upon direction accompanied by an Opinion of Counsel reasonably satisfactory to the Company to the effect that the failure to effect such recordation is likely to materially and adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein provided and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument.
Section 4.5. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the holders thereof.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first above written.
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Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Attention: Telecopy: Confirmation: |
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: |
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Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. By: Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Vice President
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Address: Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
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EMC MORTGAGE CORPORATION, as Servicer By: Name: Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: GreenPoint Mortgage Funding Trust 2005-AR5 Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Custodian By: Name: Title: |
STATE OF NEW YORK )
)ss.:
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COUNTY OF NEW YORK |
) |
On the 31st day of October, 2005, before me, a notary public in and for said State, personally appeared _______________, known to me to be a _________________of ▇▇▇▇▇ Fargo Bank, National Association, a national banking association that executed the within instrument, and also known to me to be the person who executed it on behalf of said association and acknowledged to me that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[SEAL]
STATE OF MARYLAND)
) ss.:
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COUNTY OF ▇▇▇▇▇▇ |
) |
On the 31st day of October, 2005, before me, a notary public in and for said State, personally appeared __________________, known to me to be a/an _____________________ of ▇▇▇▇▇ Fargo Bank, National Association, a national banking association that executed the within instrument, and also known to me to be the person who executed it on behalf of said national banking association, and acknowledged to me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[SEAL]
STATE OF NEW YORK )
)ss.:
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COUNTY OF NEW YORK |
) |
On the 31st day of October, 2005, before me, a notary public in and for said State, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, known to me to be a Vice President of Structured Asset Mortgage Investments II Inc., one of the corporations that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
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STATE OF MARYLAND |
) |
)ss.:
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COUNTY OF ▇▇▇▇▇▇ |
) |
On the 31st day of October, 2005, before me, a notary public in and for said State, personally appeared __________________, known to me to be a/an _____________________ of EMC Mortgage Corporation, a corporation that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
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▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ |
Structured Asset Mortgage Investments II Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Attention: Structured Asset Mortgage Investments II Inc.
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5
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Re: |
Custodial Agreement, dated as of October 31, 2005, by and among ▇▇▇▇▇ Fargo Bank, National Association, Structured Asset Mortgage Investments II Inc. and EMC Mortgage Corporation relating to GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 |
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, and subject to Section 2.02 of the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby certifies that it has received a Mortgage File (which contains an original Mortgage Note or lost note affidavit) to the extent required in Section 2.01 of the Pooling and Servicing Agreement with respect to each Mortgage Loan listed in the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
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▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ |
Structured Asset Mortgage Investments II Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Attention: Structured Asset Mortgage Investments II Inc.
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5
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Re: |
Custodial Agreement, dated as of October 31, 2005, by and among ▇▇▇▇▇ Fargo Bank, National Association, Structured Asset Mortgage Investments II Inc. and EMC Mortgage Corporation relating to GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 |
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, the undersigned, as Custodian, hereby certifies that it has received a Mortgage File to the extent required pursuant to Section 2.01 of the Pooling and Servicing Agreement with respect to each Mortgage Loan listed in the Mortgage Loan Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule and has determined that: all required documents have been executed and received and that such documents related to the Mortgage Loans identified on the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
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▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ |
Structured Asset Mortgage Investments II Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Attention: Structured Asset Mortgage Investments II Inc.
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5
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Re: |
Custodial Agreement, dated as of October 31, 2005, by and among ▇▇▇▇▇ Fargo Bank, National Association, Structured Asset Mortgage Investments II Inc. and EMC Mortgage Corporation relating to GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 |
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement and subject to Section 2.02(b) of the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby certifies that, subject to any exceptions listed on Schedule A attached hereto, it has received a Mortgage File with respect to each Mortgage Loan listed in the Mortgage Loan Schedule containing with respect to each such Mortgage Loan:
(i) The original Mortgage Note, endorsed without recourse (A) to the order of the Trustee or (B) in the case of a Mortgage Loan in the MERS System, in blank, and in each case showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee or a 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;
(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 A ▇▇▇▇▇ Fargo Bank, National
Association, as Trustee@, with evidence of recording with respect to each Mortgage Loan in the name of the Trustee thereon;
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Seller 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
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(vii) |
originals of all modification agreements, if applicable and available. |
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Custodial Agreement or in the Pooling and Servicing Agreement, as applicable.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
EXHIBIT H
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
between
EMC MORTGAGE CORPORATION
as Mortgage Loan Seller
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
as Purchaser
Dated as of
October 31, 2005
Structured Asset Mortgage Investments II Inc.
GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5
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TABLE OF CONTENTS |
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Page |
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SECTION 1. |
Definitions. |
1 |
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SECTION 2. |
Purchase and Sale of the Mortgage Loans and Related Rights. |
3 |
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SECTION 3. |
Mortgage Loan Schedules. |
4 |
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SECTION 4. |
Mortgage Loan Transfer. |
4 |
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SECTION 5. |
Examination of Mortgage Files. |
5 |
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SECTION 6. |
Recordation of Assignments of Mortgage. |
7 |
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SECTION 7. |
Representations and Warranties of Mortgage Loan Seller Concerning the |
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Mortgage Loans. |
8 |
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SECTION 8. |
Representations and Warranties Concerning the Mortgage Loan Seller. |
13 |
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SECTION 9. |
Representations and Warranties Concerning the Purchaser. |
14 |
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SECTION 10. |
Conditions to Closing. |
15 |
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SECTION 11. |
Fees and Expenses. |
17 |
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SECTION 12. |
Accountants' Letters. |
17 |
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SECTION 13. |
Indemnification. |
18 |
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SECTION 14. |
Notices. |
20 |
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SECTION 15. |
Transfer of Mortgage Loans. |
20 |
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SECTION 16. |
Termination. |
22 |
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SECTION 17. |
Representations, Warranties and Agreements to Survive Delivery |
20 |
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SECTION 18. |
Severability. |
21 |
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SECTION 19. |
Counterparts. |
21 |
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SECTION 20. |
Amendment. |
22 |
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SECTION 21. |
Governing Law. |
21 |
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SECTION 22. |
Further Assurances. |
21 |
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SECTION 23. |
Successors and Assigns. |
21 |
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SECTION 24. |
The Mortgage Loan Seller and the Purchaser. |
21 |
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SECTION 25. |
Entire Agreement. |
21 |
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SECTION 26. |
No Partnership. |
22 |
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EXHIBIT 1 |
CONTENTS OF MORTGAGE FILE |
E-1 |
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EXHIBIT 2 |
MORTGAGE LOAN SCHEDULE INFORMATION |
E-2-1 |
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EXHIBIT 3 |
MORTGAGE LOAN SELLER'S INFORMATION |
E-3 |
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EXHIBIT 4 |
PURCHASER'S INFORMATION |
E-4 |
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EXHIBIT 5 |
SCHEDULE OF LOST NOTES |
▇-▇ |
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▇▇▇▇▇▇▇ ▇ |
▇▇▇▇▇▇▇▇ & ▇▇▇▇’s LEVELS® Glossary, Version 5.6b Revised, |
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Appendix E |
E-6-1 |
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SCHEDULE A |
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES |
A-1 |
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SCHEDULE B |
MORTGAGE LOAN SCHEDULE |
B-1 |
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
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Exhibit 1 |
Contents of Mortgage File |
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Exhibit 2 |
Mortgage Loan Schedule Information |
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Exhibit 3 |
Mortgage Loan Seller's Information |
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Exhibit 4 |
Purchaser's Information |
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Exhibit 5 |
Schedule of Lost Notes |
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Exhibit 6 |
Standard & Poor’s LEVELS® Glossary, Version 5.6b Revised, Appendix E |
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Schedule A |
Required Ratings for Each Class of Certificates |
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Schedule B |
Mortgage Loan Schedule |
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MORTGAGE LOAN PURCHASE AGREEMENT |
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of October 31, 2005, as amended and supplemented by any and all amendments hereto (collectively, the "Agreement"), by and between EMC MORTGAGE CORPORATION, a Delaware corporation (the "Mortgage Loan Seller"), and STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the Purchaser agrees to purchase, certain conventional, adjustable rate, first lien negative amortization mortgage loans secured primarily by one- to four-family residential properties (collectively, the "Mortgage Loans") as described herein. The Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust Fund") and create GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5 (the "Certificates"), under a pooling and servicing agreement, to be dated as of October 1, 2005 (the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "Trustee") and EMC Mortgage Corporation, as servicer (in such capacity, the “Servicer”) and seller.
The Purchaser has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (Number 333-120916) relating to its Mortgage Pass-Through Certificates and the offering of certain series thereof (including certain classes of the Certificates) from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (the "Securities Act"). Such registration statement, when it became effective under the Securities Act, and the prospectus relating to the public offering of certain classes of the Certificates by the Purchaser (the "Public Offering"), as from time to time each is amended or supplemented pursuant to the Securities Act or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively. The "Prospectus Supplement" shall mean that supplement, dated October 28, 2005 to the Prospectus, dated December 20, 2004, relating to certain classes of the Certificates. With respect to the Public Offering of certain classes of the Certificates, the Purchaser and Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇") have entered into a terms agreement dated as of October 28, 2005 to an underwriting agreement dated July 29, 2003, between the Purchaser and Bear ▇▇▇▇▇▇▇ (collectively, the "Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual agreements set forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. Certain terms are defined herein. Capitalized terms used herein but not defined herein shall have the meanings specified in the Pooling and Servicing Agreement. The following other terms are defined as follows:
Acquisition Price: Cash in amount agreed upon by the Mortgage Loan Seller and the Purchaser.
Bear ▇▇▇▇▇▇▇: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Closing Date: October 31, 2005.
Cut-off Date: October 1, 2005.
Cut-off Date Balance: Approximately $1,433,385,839.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the date in each month on which its Scheduled Payment is due, if such due date is the first day of a month, and otherwise is deemed to be the first day of the following month or such other date specified in the related Servicing Agreement.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or its successors in interest.
Mortgage: The mortgage or deed of trust creating a first lien on an interest in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 pertaining to a particular Mortgage Loan and any additional documents required to be added to such documents pursuant to this Agreement or the Pooling and Servicing Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a Mortgage Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be counsel for the Mortgage Loan Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Purchase Price: With respect to any Mortgage Loan (or any property acquired with respect thereto) required to be purchased by the Mortgage Loan Seller pursuant to this Agreement or Article II of the Pooling and Servicing Agreement, an amount equal to the sum of (i)(a) 100% of the Outstanding Principal Balance of such Mortgage Loan as of the date of
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Please contact Bear, ▇▇▇▇▇▇▇ & Co. Inc. for Acquisition Price. |
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repurchase (or if the related Mortgaged Property was acquired with respect thereto, 100% of the Outstanding Principal Balance at the date of the acquisition), plus (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 reduced by (c) any portion of the Servicing Compensation, Monthly Advances and advances payable to the purchaser of the Mortgage Loan and (ii) any costs and damages (if any) incurred by the Trust in connection with any violation of such Mortgage Loan of any anti-predatory lending laws.
Rating Agencies: Standard & Poor's and Moody's, each a "Rating Agency."
Securities Act: The Securities Act of 1933, as amended.
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.
Servicer: EMC Mortgage Corporation.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its successors in interest.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted Mortgage Loan which must meet on the date of such substitution the requirements stated herein and in the Pooling and Servicing Agreement; upon such substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination of the related Mortgage Loan, such value being the lesser of (i) the value of such property set forth in an appraisal accepted by the applicable originator of the Mortgage Loan or (ii) the sales price of such property at the time of origination.
SECTION 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(i) Upon satisfaction of the conditions set forth in Section 10 hereof, the Mortgage Loan Seller agrees to sell, and the Purchaser agrees to purchase Mortgage Loans having an aggregate outstanding principal balance as of the Cut-off Date equal to the Cut-off Date Balance.
(ii) The closing for the purchase and sale of the Mortgage Loans and the closing for the issuance of the Certificates will take place on the Closing Date at the office of the Purchaser's counsel in New York, New York or such other place as the parties shall agree.
(iii) Upon the satisfaction of the conditions set forth in Section 10 hereof, on the Closing Date, the Purchaser shall pay to the Mortgage Loan Seller the Acquisition Price for the Mortgage Loans in immediately available funds by wire transfer to such account or accounts as shall be designated by the Mortgage Loan Seller.
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(iv) In addition to the foregoing, on the Closing Date the Mortgage Loan Seller assigns to the Purchaser all of its right, title and interest in the Servicing Agreements (other than its right to enforce the representations and warranties set forth therein).
SECTION 3. Mortgage Loan Schedules. The Mortgage Loan Seller agrees to provide to the Purchaser as of the date hereof a preliminary listing of the Mortgage Loans (the “Preliminary Mortgage Loan Schedule”) setting forth the information listed on Exhibit 2 to this Agreement with respect to each of the Mortgage Loans being sold by the Mortgage Loan Seller. If there are changes to the Preliminary Mortgage Loan Schedule, the Mortgage Loan Seller shall provide to the Purchaser as of the Closing Date a final schedule (the "Final Mortgage Loan Schedule") setting forth the information listed on Exhibit 2 to this Agreement with respect to each of the Mortgage Loans being sold by the Mortgage Loan Seller to the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the Purchaser on the Closing Date, shall be attached to an amendment to this Agreement to be executed on the Closing Date by the parties hereto and shall be in form and substance mutually agreed to by the Mortgage Loan Seller and the Purchaser (the "Amendment"). If there are no changes to the Preliminary Mortgage Loan Schedule, the Preliminary Mortgage Loan Schedule shall be the Final Mortgage Loan Schedule for all purposes hereof.
SECTION 4. Mortgage Loan Transfer.
(i) The Purchaser will be entitled to all scheduled payments of principal and interest on the Mortgage Loans due after the Cut-off Date (regardless of when actually collected) and all payments thereon, other than scheduled principal and interest, received after the Cut-off Date. The Mortgage Loan Seller will be entitled to all scheduled payments of principal and interest on the Mortgage Loans due on or before the Cut-off Date (including payments collected after the Cut-off Date) and all payments thereon, other than scheduled principal and interest, received on or before the Cut-off Date. Such principal amounts and any interest thereon belonging to the Mortgage Loan Seller as described above will not be included in the aggregate outstanding principal balance of the Mortgage Loans as of the Cut-off Date as set forth on the Final Mortgage Loan Schedule.
(ii) Pursuant to various conveyance documents to be executed on the Closing Date and pursuant to the Pooling and Servicing Agreement, the Purchaser will assign on the Closing Date all of its right, title and interest in and to the Mortgage Loans to the Trustee for the benefit of the Certificateholders. In connection with the transfer and assignment of the Mortgage Loans, the Mortgage Loan Seller has delivered or will deliver or cause to be delivered to the Trustee by the Closing Date or such later date as is agreed to by the Purchaser and the Mortgage Loan Seller (each of the Closing Date and such later date is referred to as a "Mortgage File Delivery Date"), the items of each Mortgage File, provided, however, that in lieu of the foregoing, the Mortgage Loan Seller 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
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the Mortgage Loan Seller in time to permit their delivery as specified above, the Mortgage Loan Seller may deliver a true copy thereof with a certification by the Mortgage Loan Seller, 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, assignments to the Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Mortgage Loan Seller to such effect) the Mortgage Loan Seller 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) in lieu of the Mortgage Notes relating to the Mortgage Loans, each identified in the list delivered by the Purchaser to the Trustee on the Closing Date and attached hereto as Exhibit 5, the Mortgage Loan Seller may deliver lost note affidavits and indemnities of the Mortgage Loan Seller; 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 Mortgage Loan Seller, in lieu of delivering the above documents, may deliver to the Trustee a certification by the Mortgage Loan Seller or the Servicer to such effect. The Mortgage Loan Seller shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) or such certified copies to the Trustee promptly after they are received. The Mortgage Loan Seller shall cause the Mortgage and intervening assignments, if any, and the assignment of the Security Instrument to be recorded not later than 180 days after the Closing Date, unless such assignment is not required to be recorded under the terms set forth in Section 6(i) hereof.
(iii) The Mortgage Loan Seller and the Purchaser acknowledge hereunder that all of the Mortgage Loans and the related servicing will ultimately be assigned to ▇▇▇▇▇ Fargo Bank, National Association, as Trustee for the benefit of the Certificateholders, on the date hereof.
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SECTION 5. |
Examination of Mortgage Files. |
(i) On or before the Mortgage File Delivery Date, the Mortgage Loan Seller will have made the Mortgage Files available to the Purchaser or its agent for examination which may be at the offices of the Trustee or the Mortgage Loan Seller and/or the Mortgage Loan Seller's custodian. The fact that the Purchaser or its agent has conducted or has failed to conduct any partial or complete examination of the Mortgage Files shall not affect the Purchaser's rights to demand cure, repurchase, substitution or other relief as provided in this Agreement. In furtherance of the foregoing, the Mortgage Loan Seller shall make the Mortgage Files available to the Purchaser or its agent from time to time so as to permit the Purchaser to confirm the Mortgage Loan Seller's compliance with the delivery and recordation requirements of this Agreement and the Pooling and Servicing Agreement. In addition, upon request of the Purchaser, the Mortgage Loan Seller agrees to provide to the Purchaser, Bear ▇▇▇▇▇▇▇ and to any investors or prospective investors in the Certificates information regarding the Mortgage Loans and their servicing, to make the Mortgage Files available to the Purchaser, Bear ▇▇▇▇▇▇▇ and to such investors or prospective investors (which may be at the offices of the Mortgage Loan Seller and/or the Mortgage Loan Seller's custodian) and to make available personnel knowledgeable about the Mortgage Loans for discussions with the Purchaser, Bear ▇▇▇▇▇▇▇ and such investors or prospective investors, upon reasonable request during regular business hours, sufficient to permit
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the Purchaser, Bear ▇▇▇▇▇▇▇ and such investors or potential investors to conduct such due diligence as any such party reasonably believes is appropriate.
(ii) Pursuant to the Pooling and Servicing Agreement, on the Closing Date the Trustee, for the benefit of the Certificateholders, will review or cause the Custodian to review items of the Mortgage Files as set forth on Exhibit 1 and will execute and deliver or cause the Custodian to execute and deliver to the Mortgage Loan Seller an initial certification in the form attached as Exhibit One to the Custodial Agreement.
(iii) Pursuant to the Pooling and Servicing Agreement, within 90 days of the Closing Date, the Trustee will review or shall cause the Custodian to review items of the Mortgage Files as set forth on Exhibit 1 and will execute and deliver, or cause to be executed and delivered, to the Mortgage Loan Seller and the Servicer an interim certification substantially in the form of Exhibit Two to the Custodial Agreement.
(iv) Pursuant to the Pooling and Servicing Agreement, within 180 days of 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 will review or cause the Custodian to review items of the Mortgage Files as set forth on Exhibit 1 and will deliver to the Mortgage Loan Seller and the Servicer a final certification substantially in the form of Exhibit Three to the Custodial Agreement. If the Trustee is unable to deliver a final certification with respect to the items listed in Exhibit 1 due to any document that is missing, has not been executed, is unrelated, determined on the basis of the Mortgagor name, original principal balance and loan number, to the Mortgage Loans identified in the Final Mortgage Loan Schedule (a "Material Defect"), the Trustee or the Custodian, as its agent, shall promptly notify the Mortgage Loan Seller of such Material Defect. The Mortgage Loan Seller shall correct or cure any such Material 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 Mortgage Loan Seller does not correct or cure such Material Defect within such period and such defect materially and adversely affects the interests of the Certificateholders or the Certificate Insurer in the related Mortgage Loan, the Mortgage Loan Seller will, in accordance with the terms of the Pooling and Servicing Agreement, within 90 days of the date of notice, provide the Trustee with a Substitute Mortgage Loan (if within two years of the Closing Date) or purchase the related Mortgage Loan at the applicable Purchase Price; provided that, if such defect would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution 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 Mortgage Loan 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 Mortgage Loan Seller shall not be required to purchase such Mortgage Loan if the Mortgage Loan 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 Mortgage Loan 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 Mortgage Loan Seller shall instead deliver a recording receipt of such recording office or, if such receipt is not available, a
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certificate of the Mortgage Loan Seller or the Servicing Officer 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 Mortgage Loan Seller within thirty days of its receipt of the original recorded document.
(v) At the time of any substitution, the Mortgage Loan Seller shall deliver or cause to be delivered the Substitute Mortgage Loan, the related Mortgage File and any other documents and payments required to be delivered in connection with a substitution pursuant to the Pooling and Servicing Agreement. At the time of any purchase or substitution, the Trustee shall (i) assign to the Mortgage Loan Seller and release or cause the Custodian to release the documents (including, but not limited to, the Mortgage, Mortgage Note and other contents of the Mortgage File) in its possession or in the possession of the Custodian relating to the Deleted Mortgage Loan and (ii) execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in the Mortgage Loan Seller title to such Deleted Mortgage Loan.
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SECTION 6. |
Recordation of Assignments of Mortgage. |
(i) The Mortgage Loan Seller shall, promptly after the Closing Date, cause each Mortgage and each assignment of Mortgage from the Mortgage Loan Seller to the Trustee, and all unrecorded intervening assignments, if any, delivered on or prior to the Closing Date, to be recorded in all recording offices in the jurisdictions where the related Mortgaged Properties are located; provided, however, the Mortgage Loan Seller need not cause to be recorded any assignment which relates to a Mortgage Loan if (a) such recordation is not required by the Rating Agencies or an Opinion of Counsel has been provided to the Trustee which states that the recordation of such assignment is not necessary to protect the Trustee's interest in the related Mortgage Loan or (b) MERS is identified on the Mortgage or a properly recorded assignment of the Mortgage, as the mortgagee of record solely as nominee for the Mortgage Loan Seller and its successors and assigns; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall be submitted for recording by the Mortgage Loan Seller in the manner described above, at no expense to the Trust Fund or Trustee, 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 Mortgage Loan Seller and (iv) the occurrence of a servicing transfer as described in Section 8.02 of the Pooling and Servicing Agreement.
While each such Mortgage or assignment is being recorded, if necessary, the Mortgage Loan Seller shall leave or cause to be left with the Trustee a certified copy of such Mortgage or assignment. In the event that, within 180 days of the Closing Date, the Trustee has not been provided an Opinion of Counsel as described above or received evidence of recording with respect to each Mortgage Loan delivered to the Purchaser pursuant to the terms hereof or as set forth above, the failure to provide evidence of recording or such Opinion of Counsel (in the alternative, if required) shall be considered a Material Defect, and the provisions of Section 5(iii) and (iv) shall apply. All customary recording fees and reasonable expenses relating to the recordation of the assignments of Mortgage to the Trustee or the Opinion of Counsel, as the case may be, shall be borne by the Mortgage Loan Seller.
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(ii) It is the express intent of the parties hereto that the conveyance of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser, as contemplated by this Agreement be, and be treated as, a sale. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser to secure a debt or other obligation of the Mortgage Loan Seller. However, in the event that, notwithstanding the intent of the parties, the Mortgage Loans are held by a court of competent jurisdiction to continue to be property of the Mortgage Loan Seller, then (a) this Agreement shall also be deemed to be a security agreement within the meaning of Article 9 of the applicable Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to the Purchaser of a security interest in all of the Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans and all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, to the extent the Purchaser would otherwise be entitled to own such Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts, other than investment earnings, from time to time held or invested in any accounts created pursuant to the Pooling and Servicing Agreement, whether in the form of cash, instruments, securities or other property; (c) the possession by the Purchaser or the Trustee of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-313 (or comparable provision) of the applicable Uniform Commercial Code; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. Any assignment of the interest of the Purchaser pursuant to any provision hereof or pursuant to the Pooling and Servicing Agreement shall also be deemed to be an assignment of any security interest created hereby. The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.
SECTION 7. Representations and Warranties of Mortgage Loan Seller Concerning the Mortgage Loans. The Mortgage Loan Seller hereby represents and warrants to the Purchaser as of the Closing Date or such other date as may be specified below with respect to each Mortgage Loan being sold by it:
(i) the information set forth in the Mortgage Loan Schedule hereto is true and correct in all material respects and the information provided to the Rating Agencies, including the Mortgage Loan level detail, is true and correct according to the Rating Agency requirements;
(ii) immediately prior to the transfer to the Purchaser, the Mortgage Loan Seller was the sole owner of beneficial title and holder of each Mortgage and Mortgage Note
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relating to the Mortgage Loans and is conveying the same to the Purchaser free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature and the Mortgage Loan Seller has full right and authority to sell or assign the same pursuant to this Agreement;
(iii) each Mortgage Loan at the time it was made complied in all material respects with all applicable laws and regulations, including, without limitation, usury, equal credit opportunity, disclosure and recording laws and all predatory lending laws; and each Mortgage Loan has been serviced in all material respects in accordance with all applicable laws and regulations, including, without limitation, usury, equal credit opportunity, disclosure and recording laws and all predatory lending laws and the terms of the related Mortgage Note, the Mortgage and other loan documents;
(iv) (iv) there is no monetary default existing under any Mortgage or the related Mortgage Note and there is no material event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach or event of acceleration; and neither the Mortgage Loan Seller, any of its affiliates nor any servicer of any related Mortgage Loan has taken any action to waive any default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the Mortgage Loan;
(v) the terms of the Mortgage Note and the Mortgage have not been impaired, waived, altered or modified in any respect, except by written instruments, (i) if required by law in the jurisdiction where the Mortgaged Property is located, or (ii) to protect the interests of the Trustee on behalf of the Certificateholders;
(vi) no selection procedure reasonably believed by the Mortgage Loan Seller to be adverse to the interests of the Certificateholders was utilized in selecting the Mortgage Loans;
(vii) each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note and each Mortgaged Property is owned by the Mortgagor in fee simple (except with respect to common areas in the case of condominiums, PUDs and de minimis PUDs) or by leasehold for a term longer than the term of the related Mortgage, subject only to (i) the lien of current real property taxes and assessments, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the related Mortgage Loan or referred to in the lender's title insurance policy delivered to the originator of the related Mortgage Loan and (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage;
(viii) there is no mechanics' lien or claim for work, labor or material affecting the premises subject to any Mortgage which is or may be a lien prior to, or equal with, the lien of
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such Mortgage except those which are insured against by the title insurance policy referred to in (xiii) below;
(ix) there was no delinquent tax or assessment lien against the property subject to any Mortgage, except where such lien was being contested in good faith and a stay had been granted against levying on the property;
(x) there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal and interest on such Mortgage Note;
(xi) the physical property subject to any Mortgage is free of material damage and is in good repair and there is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property;
(xii) the Mortgaged Property and all improvements thereon comply with all requirements of any applicable zoning and subdivision laws and ordinances;
(xiii) a lender's title insurance policy (on an ALTA or CLTA form) or binder, or other assurance of title customary in the relevant jurisdiction therefor in a form acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, was issued on the date that each Mortgage Loan was created by a title insurance company which was qualified to do business in the jurisdiction where the related Mortgaged Property is located, insuring the Mortgage Loan Seller and its successors and assigns that the Mortgage is a first priority lien on the related Mortgaged Property in the original principal amount of the Mortgage Loan. The Mortgage Loan Seller is the sole insured under such lender's title insurance policy, and such policy, binder or assurance is valid and remains in full force and effect, and each such policy, binder or assurance shall contain all applicable endorsements including a negative amortization endorsement, if applicable;
(xiv) at the time of origination, each Mortgaged Property was the subject of an appraisal which conformed to the underwriting requirements of the originator of the Mortgage Loan;
(xv) the improvements on each Mortgaged Property securing a Mortgage Loan are insured (by an insurer which is acceptable to the Mortgage Loan Seller) against loss by fire and such hazards as are covered under a standard extended coverage endorsement in the locale in which the Mortgaged Property is located, in an amount which is not less than the lesser of the maximum insurable value of the improvements securing such Mortgage Loan or the outstanding principal balance of the Mortgage Loan, but in no event in an amount less than an amount that is required to prevent the Mortgagor from being deemed to be a co-insurer thereunder; if the improvement on the Mortgaged Property is a condominium unit, it is included under the coverage afforded by a blanket policy for the condominium project; if upon origination of the related Mortgage Loan, the improvements on the Mortgaged Property were in an area identified as a federally designated flood area, a flood insurance policy is in effect in an amount representing coverage not less than the least of (i) the outstanding principal balance of the Mortgage Loan, (ii) the restorable cost of improvements located on such Mortgaged Property or
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(iii) the maximum coverage available under federal law; and each Mortgage obligates the Mortgagor thereunder to maintain the insurance referred to above at the Mortgagor's cost and expense;
(xvi) each Mortgage Loan constitutes a "qualified mortgage" under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9) without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a “qualified mortgage” notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9);
(xvii) each Mortgage Loan was originated or funded by (a) a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution which is supervised and examined by a federal or state authority (or originated by (i) a subsidiary of any of the foregoing institutions which subsidiary is actually supervised and examined by applicable regulatory authorities or (ii) a mortgage loan correspondent of any of the foregoing and that was originated pursuant to the criteria established by any of the foregoing) or (b) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act, as amended;
(xviii) none of the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing TILA, which implements the Home Ownership and Equity Protection Act of 1994, as amended or (b) “high cost home,” “covered” (excluding home loans defined as “covered home loans” in the New Jersey Home Ownership Security Act of 2002 that were originated between November 26, 2003 and July 7, 2004), “high risk home” or “predatory” loans under any applicable state, federal or local law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees);
(xix) no Mortgage Loan (a) is a “high cost loan” or “covered loan” as applicable (as such terms are defined in Standard & Poor’s LEVELS® Glossary, Version 5.6c, Appendix E, attached hereto as Exhibit 6 or (b) was originated on or after October 1, 2002 through March 6, 2003 and is governed by the Georgia Fair Lending Act;
(xx) the information set forth in Schedule A of the Prospectus Supplement with respect to the Mortgage Loans is true and correct in all material respects;
(xxi) with respect to each Mortgage Loan in Loan Group II, no borrower obtained a prepaid single-premium credit-life, credit disability, credit unemployment or credit property insurance policy in connection with the origination of the Mortgage Loan;
(xxii) none of the Mortgage Loans in Loan Group II impose a prepayment penalty for a term in excess of five years from the origination date;
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(xxiii) with respect to each Mortgage Loan in Loan Group II, information regarding the borrower credit files related to such Mortgage Loan has been furnished to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations;
(xxiv) each Mortgage Loan was originated in accordance with the underwriting guidelines of the related originator;
(xxv) each original Mortgage has been recorded or is in the process of being recorded in accordance with the requirements of Section 2.01 of the Pooling and Servicing Agreement in the appropriate jurisdictions wherein such recordation is required to perfect the lien thereof for the benefit of the Trust Fund;
(xxvi) the related Mortgage File contains each of the documents and instruments listed in Section 2.01 of the Pooling and Servicing Agreement, subject to any exceptions, substitutions and qualifications as are set forth in such Section;
(xxvii) the Mortgage Loans are currently being serviced in accordance with accepted servicing practices;
(xxviii) at the time of origination, each Mortgaged Property was the subject of an appraisal which conformed to the underwriting requirements of the originator of the Mortgage Loan, and the appraisal is in a form which was acceptable to ▇▇▇▇▇▇ Mae or FHLMC at the time of origination;
(xxix) none of the Mortgage Loans that are secured by property located in the State of Illinois are in violation of the provisions of the Illinois Interest Act;
(xxx) with respect to each Mortgage Loan that has a prepayment penalty feature, each such prepayment penalty is enforceable and will be enforced by the Mortgage Loan Seller and each prepayment penalty is permitted pursuant to federal, state and local law, provided that (i) no Mortgage Loan will impose a prepayment penalty for a term in excess of five years from the date such Mortgage Loan was originated and (ii) such prepayment penalty is at least equal to the lesser of (A) the maximum amount permitted under applicable law and (B) six months interest at the related Mortgage Interest Rate on the amount prepaid in excess of 20% of the original principal balance of such Mortgage Loan;
(xxxi) with respect to each Mortgage Loan in Loan Group II and originated on or after August 1, 2004, neither the related Mortgage nor the related Mortgage Note requires the borrower to submit to arbitration to resolve any dispute arising out of or relating in any way to the origination of such Mortgage Loan;
(xxxii) no Mortgage Loan in Loan Group II is a balloon mortgage loan that has an original stated maturity of less than seven (7) years;
(xxxiii) no Mortgage Loan in Loan Group II that was originated on or after October 31, 2004, is subject to mandatory arbitration except when the terms of the arbitration
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also contain a waiver provision that provides that in the event of a sale or transfer of such Mortgage Loan or interest in such Mortgage Loan to ▇▇▇▇▇▇ ▇▇▇, the terms of the arbitration are null and void and cannot be reinstated. The Seller hereby agrees that the Seller or the Servicer of the Mortgage Loans in Loan Group II will notify the borrower in writing within 60 days of the sale or transfer of such Mortgage Loan to ▇▇▇▇▇▇ Mae that the terms of arbitration are null and void;
(xxxiv) no borrower of a Mortgage Loan in Loan Group II was encouraged or required to select a product offered by such Mortgage Loan’s originator which is a higher cost product designed for less creditworthy borrowers, unless at the time of such Mortgage Loan’s origination, such borrower did not qualify taking into account credit history and debt-to-income ratios for a lower-cost credit product then offered by the Mortgage Loan’s originator or any affiliate of that originator. If, at the time of loan application, the borrower may have qualified for a lower-cost product than offered by any mortgage lending affiliate of the Group II Loan’s originator, the such originator referred the borrower’s application to such affiliate for underwriting consideration;
(xxxv) the methodology used in underwriting the extension of credit for each Mortgage Loan in Loan Group II employs objective mathematical principles which relate the borrower’s income, assets and liabilities to the proposed payment and such underwriting methodology does not rely on the extent of the borrower’s equity in the collateral as the principal determining factor in approving such credit extension. Such underwriting methodology confirmed that at the time of origination (application/approval) the borrower had a reasonable ability to make timely payments on such Mortgage Loan;
(xxxvi) With respect to any Mortgage Loan in Loan Group II that contains a provision permitting imposition of a premium upon a prepayment prior to maturity: (i) prior to such loan’s origination, the borrower agreed to such premium in exchange for a monetary benefit, including but not limited to a rate or fee reduction, (ii) prior to such loan’s origination, the borrower was offered the option of obtaining a mortgage loan that did not require payment of such a premium, (iii) for loans originated on or after September 1, 2004, the duration of the prepayment period shall not exceed three (3) years from the date of the note, unless the loan was modified to reduce the prepayment period to no more than three years from the date of the note and the borrower was notified in writing of such reduction in prepayment period;
(xxxvii) no proceeds from any Mortgage Loan in Loan Group II were used to purchase single premium credit insurance policies or debt cancellation agreements as part of the origination of, or as a condition to closing, such Mortgage Loan in Loan Group II;
(xxxviii) all points and fees related to each Mortgage Loan in Loan Group II were disclosed in writing to the mortgagor in accordance with applicable state and federal law and regulation. Except in the case of a Mortgage Loan in Loan Group II in an original principal amount of less than $60,000 which would have resulted in an unprofitable origination, no mortgagor was charged “points and fees” (whether or not financed) in an amount greater than 5% of the principal amount of such loan and such 5% limitation is calculated in accordance with
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▇▇▇▇▇▇ Mae’s anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇ Mae Selling Guide; and
(xxxix) all fees and charges (including finance charges) and whether or not financed, assessed, collected or to be collected in connection with the origination and servicing of each Mortgage Loan in Loan Group II has been disclosed in writing to the borrower in accordance with applicable state and federal law and regulation.
It is understood and agreed that the representations and warranties set forth in this Section 7 will inure to the benefit of the Purchaser, its successors and assigns, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or assignment of Mortgage or the examination of any Mortgage File. Upon any substitution for a Mortgage Loan, the representations and warranties set forth above shall be deemed to be made by the Mortgage Loan Seller as to any Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Mortgage Loan Seller, the Purchaser, the Certificate Insurer or the Trustee of a breach of any representation or warranty of the Mortgage Loan Seller set forth in this Section 7 which materially and adversely affects the value of the interests of the Purchaser, the Certificateholders, the Certificate Insurer or the Trustee in any of the Mortgage Loans delivered to the Purchaser pursuant to this Agreement, the party discovering or receiving notice of such breach shall give prompt written notice to the others. In the case of any such breach of a representation or warranty set forth in this Section 7, within 90 days from the date of discovery by the Mortgage Loan Seller, or the date the Mortgage Loan Seller is notified by the party discovering or receiving notice of such breach (whichever occurs earlier), the Mortgage Loan Seller will (i) cure such breach in all material respects, (ii) purchase the affected Mortgage Loan at the applicable Purchase Price or (iii) if within two years of the Closing Date, substitute a qualifying Substitute Mortgage Loan in exchange for such Mortgage Loan. The obligations of the Mortgage Loan Seller to cure, purchase or substitute a qualifying Substitute Mortgage Loan shall constitute the Purchaser's, the Trustee's and the Certificateholder's sole and exclusive remedies under this Agreement or otherwise respecting a breach of representations or warranties hereunder with respect to the Mortgage Loans, except for the obligation of the Mortgage Loan Seller to indemnify the Purchaser for such breach as set forth in and limited by Section 13 hereof. It is understood by the parties hereto that a breach of the representations and warranties made in any of clause (xviii), (xix)(b), (xxi), (xxii), (xxiii) or (xxxi) of this Section 7 will be deemed to materially and adversely affect the value of the interests of the Purchaser, the Certificateholders, the Certificate Insurer or the Trustee in the related Mortgage Loan.
Any cause of action against the Mortgage Loan Seller or relating to or arising out of a breach by the Mortgage Loan Seller of any representations and warranties made in this Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Mortgage Loan Seller or notice thereof by the party discovering such breach and (ii) failure by the Mortgage Loan Seller to cure such breach, purchase such Mortgage Loan or substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
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SECTION 8. Representations and Warranties Concerning the Mortgage Loan Seller. As of the date hereof and as of the Closing Date, the Mortgage Loan Seller represents and warrants to the Purchaser as to itself in the capacity indicated as follows:
(i) the Mortgage Loan Seller (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and (ii) is qualified and in good standing 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 Mortgage Loan Seller's business as presently conducted or on the Mortgage Loan Seller’s ability to enter into this Agreement and to consummate the transactions contemplated hereby;
(ii) the Mortgage Loan Seller has full corporate power to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Mortgage Loan Seller of this Agreement has been duly authorized by all necessary action on the part of the Mortgage Loan Seller; 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 Mortgage Loan Seller or its properties or the charter or by-laws of the Mortgage Loan Seller, except those conflicts, breaches or defaults which would not reasonably be expected to have a material adverse effect on the Mortgage Loan Seller's ability to enter into this Agreement and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Mortgage Loan Seller 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 and, in connection with the recordation of the Mortgages, powers of attorney or assignments of Mortgages not yet completed;
(v) this Agreement has been duly executed and delivered by the Mortgage Loan Seller and, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and binding obligation of the Mortgage Loan Seller enforceable against it in accordance with its terms (subject to applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge of the Mortgage Loan Seller, threatened against the Mortgage Loan Seller, 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 Mortgage Loan Seller could reasonably be expected to be determined adversely to the Mortgage Loan Seller and if determined adversely to the Mortgage Loan Seller materially and
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adversely affect the Mortgage Loan Seller's ability to perform its obligations under this Agreement; and the Mortgage Loan Seller is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect the transactions contemplated by this Agreement; and
(vii) the Mortgage Loan Seller's Information (identified in Exhibit 3 hereof) does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
SECTION 9. Representations and Warranties Concerning the Purchaser. As of the date hereof and as of the Closing Date, the Purchaser represents and warrants to the Mortgage Loan Seller as follows:
(i) the Purchaser (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and (ii) 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 Purchaser's business as presently conducted or on the Purchaser's ability to enter into this Agreement and to consummate the transactions contemplated hereby;
(ii) the Purchaser has full corporate power to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Purchaser of this Agreement have been duly authorized by all necessary corporate action on the part of the Purchaser; 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 Purchaser or its properties or the articles of incorporation or by-laws of the Purchaser, except those conflicts, breaches or defaults which would not reasonably be expected to have a material adverse effect on the Purchaser's ability to enter into this Agreement and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Purchaser of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except those consents, approvals, notices, registrations or other actions as have already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery by the Mortgage Loan Seller, constitutes a valid and binding obligation of the Purchaser 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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(vi) there are no actions, suits or proceedings pending or, to the knowledge of the Purchaser, threatened against the Purchaser, 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 Purchaser will be determined adversely to the Purchaser and will if determined adversely to the Purchaser materially and adversely affect the Purchaser's ability to perform its obligations under this Agreement; and the Purchaser is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect the transactions contemplated by this Agreement; and
(vii) the Purchaser's Information (identified in Exhibit 4 hereof) does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
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SECTION 10. |
Conditions to Closing. |
(1) The obligations of the Purchaser under this Agreement will be subject to the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Mortgage Loan Seller required to be performed at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects; all of the representations and warranties of the Mortgage Loan Seller under this Agreement shall be true and correct as of the date or dates specified in all material respects; and no event shall have occurred which, with notice or the passage of time, would constitute a default under this Agreement, or the Pooling and Servicing Agreement; and the Purchaser shall have received certificates to that effect signed by authorized officers of the Mortgage Loan Seller.
(b) The Purchaser shall have received all of the following closing documents, in such forms as are agreed upon and reasonably acceptable to the Purchaser, duly executed by all signatories other than the Purchaser as required pursuant to the respective terms thereof:
(i) If required pursuant to Section 3 hereof, the Amendment dated as of the Closing Date and any documents referred to therein;
(ii) If required pursuant to Section 3 hereof, the Final Mortgage Loan Schedule containing the information set forth on Exhibit 2 hereto, one copy to be attached to each counterpart of the Amendment;
(iii) The Pooling and Servicing Agreement, in form and substance reasonably satisfactory to the Trustee and the Purchaser, and all documents required thereby duly executed by all signatories;
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(iv) A certificate of an officer of the Mortgage Loan Seller dated as of the Closing Date, in a form reasonably acceptable to the Purchaser, and attached thereto copies of the charter and by-laws of the Mortgage Loan Seller and evidence as to the good standing of the Mortgage Loan Seller dated as of a recent date;
(v) One or more opinions of counsel from the Mortgage Loan Seller's counsel otherwise in form and substance reasonably satisfactory to the Purchaser, the Trustee and each Rating Agency;
(vi) A letter from each of the Rating Agencies giving each Class of Certificates set forth on Schedule A hereto the rating set forth therein; and
(vii) Such other documents, certificates (including additional representations and warranties) and opinions as may be reasonably necessary to secure the intended ratings from each Rating Agency for the Certificates.
(c) The Certificates to be sold to Bear ▇▇▇▇▇▇▇ pursuant to the Underwriting Agreement and the Purchase Agreement, if applicable, shall have been issued and sold to Bear ▇▇▇▇▇▇▇.
(d) The Mortgage Loan Seller shall have furnished to the Purchaser such other certificates of its officers or others and such other documents and opinions of counsel to evidence fulfillment of the conditions set forth in this Agreement and the transactions contemplated hereby as the Purchaser and its counsel may reasonably request.
(2) The obligations of the Mortgage Loan Seller under this Agreement shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) The obligations of the Purchaser required to be performed by it on or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and all of the representations and warranties of the Purchaser under this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, and no event shall have occurred which would constitute a breach by it of the terms of this Agreement, and the Mortgage Loan Seller shall have received a certificate to that effect signed by an authorized officer of the Purchaser.
(b) The Mortgage Loan Seller shall have received copies of all of the following closing documents, in such forms as are agreed upon and reasonably acceptable to the Mortgage Loan Seller, duly executed by all signatories other than the Mortgage Loan Seller as required pursuant to the respective terms thereof:
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(i) If required pursuant to Section 3 hereof, the Amendment dated as of the Closing Date and any documents referred to therein;
(ii) The Pooling and Servicing Agreement, in form and substance reasonably satisfactory to the Mortgage Loan Seller, and all documents required thereby duly executed by all signatories;
(iii) A certificate of an officer of the Purchaser dated as of the Closing Date, in a form reasonably acceptable to the Mortgage Loan Seller, and attached thereto copies of the Purchaser's articles of incorporation and by-laws, and evidence as to the good standing of the Purchaser dated as of a recent date;
(iv) One or more opinions of counsel from the Purchaser's counsel in form and substance reasonably satisfactory to the Mortgage Loan Seller; and
(v) Such other documents, certificates (including additional representations and warranties) and opinions as may be reasonably necessary to secure the intended rating from each Rating Agency for the Certificates.
SECTION 11. Fees and Expenses. Subject to Section 16 hereof, the Mortgage Loan Seller shall pay on the Closing Date or such later date as may be agreed to by the Purchaser (i) the fees and expenses of the Mortgage Loan Seller's attorneys and the reasonable fees and expenses of the Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP, (iii) the fee for the use of Purchaser's Registration Statement based on the aggregate original principal amount of the Certificates and the filing fee of the Commission as in effect on the date on which the Registration Statement was declared effective, (iv) the fees and expenses including counsel's fees and expenses in connection with any "blue sky" and legal investment matters, (v) the fees and expenses of the Trustee which shall include without limitation the fees and expenses of the Trustee (and the fees and disbursements of its counsel) with respect to (A) legal and document review of this Agreement, the Pooling and Servicing Agreement, the Certificates and related agreements, (B) attendance at the Closing and (C) review of the Mortgage Loans to be performed by the Trustee, (vi) the expenses for printing or otherwise reproducing the Certificates, the Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each Rating Agency (both initial and ongoing), (viii) the fees and expenses relating to the preparation and recordation of mortgage assignments (including intervening assignments, if any and if available, to evidence a complete chain of title from the originator thereof to the Trustee) from the Mortgage Loan Seller to the Trustee or the expenses relating to the Opinion of Counsel referred to in Section 6(i) hereof, as the case may be, and (ix) Mortgage File due diligence expenses and other out-of-pocket expenses incurred by the Purchaser in connection with the purchase of the Mortgage Loans and by Bear ▇▇▇▇▇▇▇ in connection with the sale of the Certificates. The Mortgage Loan Seller additionally agrees to pay directly to any third party on a timely basis the fees provided for above which are charged by such third party and which are billed periodically.
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SECTION 12. |
Accountants' Letters. |
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(i) Deloitte & Touche LLP will review the characteristics of a sample of the Mortgage Loans described in the Final Mortgage Loan Schedule and will compare those characteristics to the description of the Mortgage Loans contained in the Prospectus Supplement under the captions "Summary of Terms - The Mortgage Pool" and "Description of the Mortgage Loans" and in Schedule A thereto. The Mortgage Loan Seller will cooperate with the Purchaser in making available all information and taking all steps reasonably necessary to permit such accountants to complete the review and to deliver the letters required of them under the Underwriting Agreement. Deloitte & Touche LLP will also confirm certain calculations as set forth under the caption "Yield and Prepayment Considerations" in the Prospectus Supplement.
(ii) To the extent statistical information with respect to the Servicer's servicing portfolio is included in the Prospectus Supplement under the caption "The Servicer," a letter from the certified public accountant for the Servicer will be delivered to the Purchaser dated the date of the Prospectus Supplement, in the form previously agreed to by the Mortgage Loan Seller and the Purchaser, with respect to such statistical information.
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SECTION 13. |
Indemnification. |
(i) The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser and its directors, officers and controlling persons (as defined in Section 15 of the Securities Act) from and against any loss, claim, damage or liability or action in respect thereof, to which they or any of them may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon (i) any untrue statement of a material fact contained in the Mortgage Loan Seller's Information as identified in Exhibit 3, the omission to state in the Prospectus Supplement or Prospectus (or any amendment thereof or supplement thereto approved by the Mortgage Loan Seller and in which additional Mortgage Loan Seller's Information is identified), in reliance upon and in conformity with Mortgage Loan Seller's Information a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made, not misleading, (ii) any representation or warranty assigned or made by the Mortgage Loan Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue or incorrect, or (iii) any failure by the Mortgage Loan Seller to perform its obligations under this Agreement; and the Mortgage Loan Seller shall reimburse the Purchaser and each other indemnified party for any legal and other expenses reasonably incurred by them in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability which the Mortgage Loan Seller otherwise may have to the Purchaser or any other such indemnified party.
(ii) The Purchaser shall indemnify and hold harmless the Mortgage Loan Seller and its respective directors, officers and controlling persons (as defined in Section 15 of the Securities Act) from and against any loss, claim, damage or liability or action in respect thereof, to which they or any of them may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon (a) any untrue statement of a material fact contained in the Purchaser's Information as identified in Exhibit 4, the omission to state in the Prospectus Supplement or Prospectus (or any amendment thereof or supplement thereto approved by the Purchaser and in which additional Purchaser's
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Information is identified), in reliance upon and in conformity with the Purchaser's Information, a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made, not misleading, (b) any representation or warranty made by the Purchaser in Section 9 hereof being, or alleged to be, untrue or incorrect, or (c) any failure by the Purchaser to perform its obligations under this Agreement; and the Purchaser shall reimburse the Mortgage Loan Seller, and each other indemnified party for any legal and other expenses reasonably incurred by them in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action. The foregoing indemnity agreement is in addition to any liability which the Purchaser otherwise may have to the Mortgage Loan Seller, or any other such indemnified party,
(iii) Promptly after receipt by an indemnified party under subsection (i) or (ii) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the commencement thereof (but the failure so to notify an indemnifying party shall not relieve such indemnified party from any liability which it may have under this Section 13 except to the extent that it has been prejudiced in any material respect by such failure or from any liability which it may have otherwise). In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly (but, in any event, within 30 days) after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (a) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (b) the indemnifying parties shall not have employed counsel to have charge of the defense of such action within a reasonable time after notice of commencement of the action, or (c) such indemnified party or parties shall have reasonably concluded that there is a conflict of interest between itself or themselves and the indemnifying party in the conduct of the defense of any claim or that the interests of the indemnified party or parties are not substantially co-extensive with those of the indemnifying party (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties (provided, however, that the indemnifying party shall be liable only for the fees and expenses of one counsel in addition to one local counsel in the jurisdiction involved. Anything in this subsection to the contrary notwithstanding, an indemnifying party shall not be liable for any settlement or any claim or action effected without its written consent; provided, however, that such consent was not unreasonably withheld.
(iv) If the indemnification provided for in paragraphs (i) and (ii) of this Section 13 shall for any reason be unavailable to an indemnified party in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to in Section 13, then the indemnifying party shall in lieu of indemnifying the indemnified party contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or
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action in respect thereof, in such proportion as shall be appropriate to reflect the relative benefits received by the Mortgage Loan Seller on the one hand and the Purchaser on the other from the purchase and sale of the Mortgage Loans, the offering of the Certificates and the other transactions contemplated hereunder. No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation.
(v) The parties hereto agree that reliance by an indemnified party on any publicly available information or any information or directions furnished by an indemnifying party shall not constitute negligence, bad faith or willful misconduct by such indemnified party.
SECTION 14. Notices. All demands, notices and communications hereunder shall be in writing but may be delivered by facsimile transmission subsequently confirmed in writing. Notices to the Mortgage Loan Seller shall be directed to EMC Mortgage Corporation, Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: (972-444-2880)), and notices to the Purchaser shall be directed to Structured Asset Mortgage Investments II Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy: (212-272-7206)), Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; or to any other address as may hereafter be furnished by one party to the other party by like notice. Any such demand, notice or communication hereunder shall be deemed to have been received on the date received at the premises of the addressee (as evidenced, in the case of registered or certified mail, by the date noted on the return receipt) provided that it is received on a Business Day during normal business hours and, if received after normal business hours, then it shall be deemed to be received on the next Business Day.
SECTION 15. Transfer of Mortgage Loans. The Purchaser retains the right to assign the Mortgage Loans and any or all of its interest under this Agreement to the Trustee without the consent of the Mortgage Loan Seller, and, upon such assignment, the Trustee shall succeed to the applicable rights and obligations of the Purchaser hereunder; provided, however, the Purchaser shall remain entitled to the benefits set forth in Sections 11, 13 and 17 hereto and as provided in Section 2(i). Notwithstanding the foregoing, the sole and exclusive right and remedy of the Trustee with respect to a breach of a representation or warranty of the Mortgage Loan Seller shall be the cure, purchase or substitution obligations of the Mortgage Loan Seller contained in Sections 5 and 7 hereof.
SECTION 16. Termination. This Agreement may be terminated (a) by the mutual consent of the parties hereto prior to the Closing Date, (b) by the Purchaser, if the conditions to the Purchaser's obligation to close set forth under Section 10(1) hereof are not fulfilled as and when required to be fulfilled or (c) by the Mortgage Loan Seller, if the conditions to the Mortgage Loan Seller's obligation to close set forth under Section 10(2) hereof are not fulfilled as and when required to be fulfilled. In the event of termination pursuant to clause (b), the Mortgage Loan Seller shall pay, and in the event of termination pursuant to clause (c), the Purchaser shall pay, all reasonable out-of-pocket expenses incurred by the other in connection with the transactions contemplated by this Agreement. In the event of a termination pursuant to clause (a), each party shall be responsible for its own expenses.
SECTION 17. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in
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certificates of officers of the Mortgage Loan Seller submitted pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser, the Mortgage Loan Seller's representations and warranties contained herein with respect to the Mortgage Loans shall be deemed to relate to the Mortgage Loans actually delivered to the Purchaser and included in the Final Mortgage Loan Schedule and any Substitute Mortgage Loan and not to those Mortgage Loans deleted from the Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the closing of the transactions contemplated hereby or any Deleted Mortgage Loan.
SECTION 18. Severability. If any provision of this Agreement shall be prohibited or invalid under applicable law, this Agreement shall be ineffective only to such extent, without invalidating the remainder of this Agreement.
SECTION 19. Counterparts. This Agreement may be executed in counterparts, each of which will be an original, but which together shall constitute one and the same agreement.
SECTION 20. Amendment. This Agreement cannot be amended or modified in any manner without the prior written consent of each party.
SECTION 21. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
SECTION 22. Further Assurances. Each of the parties agrees to execute and deliver such instruments and take such actions as another party may, from time to time, reasonably request in order to effectuate the purpose and to carry out the terms of this Agreement including any amendments hereto which may be required by either Rating Agency.
SECTION 23. Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and their permitted successors and assigns and, to the extent specified in Section 13 hereof, Bear ▇▇▇▇▇▇▇, and their directors, officers and controlling persons (within the meaning of federal securities laws). The Mortgage Loan Seller acknowledges and agrees that the Purchaser may assign its rights under this Agreement (including, without limitation, with respect to the Mortgage Loan Seller's representations and warranties respecting the Mortgage Loans) to the Trustee. Any person into which the Mortgage Loan Seller may be merged or consolidated (or any person resulting from any merger or consolidation involving the Mortgage Loan Seller), any person resulting from a change in form of the Mortgage Loan Seller or any person succeeding to the business of the Mortgage Loan Seller, shall be considered the "successor" of the Mortgage Loan Seller hereunder and shall be considered a party hereto without the execution or filing of any paper or any further act or consent on the part of any party hereto. Except as provided in the two preceding sentences and in Section 15 hereto, this Agreement cannot be assigned, pledged or hypothecated by either party hereto without the written consent of the other parties to this Agreement and any such assignment or purported assignment shall be deemed null and void.
22
SECTION 24. The Mortgage Loan Seller and the Purchaser. The Mortgage Loan Seller and the Purchaser will keep in full effect all rights as are necessary to perform their respective obligations under this Agreement.
SECTION 25. Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.
SECTION 26. No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the parties hereto.
SECTION 27. Third Party Beneficiary. The parties to this Agreement agree that the Certificate Issuer shall be a third party beneficiary of this Agreement.
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|
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
[MLPA]
24
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective duly authorized officers as of the date first above written.
EMC MORTGAGE CORPORATION
By:
|
|
Name: |
|
|
Title: |
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
By:
|
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
|
Title: |
Vice President | |
E-1
|
|
EXHIBIT 1 |
|
|
CONTENTS OF MORTGAGE FILE |
With respect to each Mortgage Loan, the Mortgage File shall include each of the following items, which shall be available for inspection by the Purchaser or its designee, and which shall be delivered to the Purchaser or its designee pursuant to the terms of the Agreement:
(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 a lost note affidavit;
(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 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 Mortgage Loan Seller in time to permit their recording as specified in Section 2.01(b) of the Pooling and Servicing Agreement, 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 "▇▇▇▇▇ Fargo Bank, National Association, as Trustee", with evidence of recording with respect to each Mortgage Loan in the name of the Trustee thereon (or if 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 Mortgage Loan Seller in time to permit their delivery as specified in Section 2.01(b) of the Pooling and Servicing Agreement, the Mortgage Loan Seller may deliver a true copy thereof with a certification by the Mortgage Loan Seller, 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");
(iv) All intervening assignments of the Security Instrument, if applicable and only to the extent available to the Mortgage Loan Seller 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
E-2
|
|
(vii) |
The originals of all modification agreements, if applicable and available. |
E-2-1
|
|
EXHIBIT 2 |
|
|
MORTGAGE LOAN SCHEDULE INFORMATION |
The Preliminary and Final Mortgage Loan Schedules shall set forth the following information with respect to each Mortgage Loan:
|
(a) |
the loan number; |
|
(b) |
the Mortgagor's name; |
|
(c) |
the city, state and zip code of the Mortgaged Property; |
|
(d) |
the property type; |
|
(e) |
the Mortgage Interest Rate; |
|
(f) |
the Servicing Fee Rate; |
|
(g) |
the Net Rate; |
|
(h) |
the original term; |
|
(i) |
the maturity date; |
|
(j) |
the stated remaining term to maturity; |
|
(k) |
the original Principal Balance; |
|
(1) |
the first payment date; |
|
(m) |
the principal and interest payment in effect as of the Cut-off Date; |
|
(n) |
the unpaid Principal Balance as of the Cut-off Date; |
|
(o) |
the Loan-to-Value Ratio at origination; |
|
(p) |
the paid-through date; |
|
(q) |
the insurer of any Primary Mortgage Insurance Policy; |
|
(r) |
the Gross Margin, if applicable; |
|
(s) |
the Maximum Lifetime Mortgage Rate, if applicable; |
|
(t) |
the Minimum Lifetime Mortgage Rate, if applicable; |
E-2-2
|
(u) |
the Periodic Rate Cap, if applicable; |
|
(v) |
the number of days delinquent, if any; |
|
(w) |
a code indicating whether the Mortgage Loan is negatively amortizing; and |
(x) which Mortgage Loans adjust after an initial fixed-rate period of one through five months.
Such schedule also shall set forth for all of the Mortgage Loans, the total number of Mortgage Loans, the total of each of the amounts described under (k) and (n) above, the weighted average by principal balance as of the Cut-off Date of each of the rates described under (e), (f) and (g) above, and the weighted average remaining term to maturity by unpaid principal balance as of the Cut-off Date.
E-3
|
|
EXHIBIT 3 |
|
|
MORTGAGE LOAN SELLER'S INFORMATION |
All information in the Prospectus Supplement described under the following Sections: "SUMMARY OF TERMS -- The Mortgage Pool," "DESCRIPTION OF THE MORTGAGE LOANS" and "SCHEDULE A -- CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS."
|
|
EXHIBIT 4 |
|
|
PURCHASER'S INFORMATION |
All information in the Prospectus Supplement and the Prospectus, except the Mortgage Loan Seller's Information.
E-3
|
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EXHIBIT 5 |
|
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SCHEDULE OF LOST NOTES |
|
|
Available Upon Request |
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇’s LEVELS® Glossary, Version 5.6b Revised, Appendix E
REVISED July 11, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ – Standard & Poor’s Anti-Predatory Lending Categorization
Standard & Poor’s has categorized loans governed by anti-predatory lending laws in the Jurisdictions listed below into three categories based upon a combination of factors that include (a) the risk exposure associated with the assignee liability and (b) the tests and thresholds set forth in those laws. Note that certain loans classified by the relevant statute as Covered are included in Standard & Poor’s High Cost Loan Category because they included thresholds and tests that are typical of what is generally considered High Cost by the industry.
|
Standard & Poor’s High Cost Loan Categorization
| ||
|
State/Jurisdiction |
Name of Anti-Predatory Lending Law/Effective Date |
Category under Applicable Anti-Predatory Lending Law |
|
Arkansas |
Arkansas Home Loan Protection Act, Ark. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq. Effective July 16, 2003 |
High Cost Home Loan |
|
Cleveland Heights, OH |
Ordinance No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq. Effective June 2, 2003 |
Covered Loan |
|
Colorado |
Consumer Equity Protection, Colo. Stat. ▇▇▇. §§ 5-3.5-101 et seq. Effective for covered loans offered or entered into on or after January 1, 2003. Other provisions of the Act took effect on June 7, 2002 |
Covered Loan |
|
Connecticut |
Connecticut Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746 et seq. Effective October 1, 2001 |
High Cost Home Loan |
|
District of Columbia |
Home Loan Protection Act, D.C. Code §§ 26-1151.01 et seq. Effective for loans closed on or after January 28, 2003 |
Covered Loan |
E-6-1
|
Florida |
Fair Lending Act, Fla. Stat. ▇▇▇. §§ 494.0078 et seq. Effective October 2, 2002 |
High Cost Home Loan |
|
Georgia (Oct. 1, 2002 – Mar. 6, 2003) |
Georgia Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1, 2002 – March 6, 2003 |
High Cost Home Loan |
|
Georgia as amended (Mar. 7, 2003 – current) |
Georgia Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective for loans closed on or after March 7, 2003 |
High Cost Home Loan |
|
HOEPA Section 32 |
Home Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R. §§ 226.32 and 226.34 Effective October 1, 1995, amendments October 1, 2002 |
High Cost Loan |
|
Illinois |
High Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq. Effective January 1, 2004 (prior to this date, regulations under Residential Mortgage License Act effective from May 14, 2001) |
High Risk Home Loan |
|
Kansas |
Consumer Credit Code, Kan. Stat. ▇▇▇. §§ 16a-1-101 et seq. Sections 16a-1-301 and 16a-3-207 became effective April 14, 1999; Section 16a-3-308a became effective July 1, 1999 |
High Loan to Value Consumer Loan (id. § 16a-3-207) and; |
|
High APR Consumer Loan (id. § 16a-3-308a) | ||
|
Kentucky |
2003 KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 et seq. Effective June 24, 2003 |
High Cost Home Loan |
|
Maine |
Truth in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq. Effective September 29, 1995 and as amended from time to time |
High Rate High Fee Mortgage |
E-6-2
|
Massachusetts |
Part 40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et seq. Effective March 22, 2001 and amended from time to time |
High Cost Home Loan |
|
Nevada |
Assembly ▇▇▇▇ No. 284, Nev. Rev. Stat. §§ 598D.010 et seq. Effective October 1, 2003 |
Home Loan |
|
New Jersey |
New Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22 et seq. Effective for loans closed on or after November 27, 2003 |
High Cost Home Loan |
|
New Mexico |
Home Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq. Effective as of January 1, 2004; Revised as of February 26, 2004 |
High Cost Home Loan |
|
New York |
N.Y. Banking Law Article 6-l Effective for applications made on or after April 1, 2003 |
High Cost Home Loan |
|
North Carolina |
Restrictions and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et seq. Effective July 1, 2000; amended October 1, 2003 (adding open-end lines of credit) |
High Cost Home Loan |
|
Ohio |
H.B. 386 (codified in various sections of the Ohio Code), Ohio Rev. Code ▇▇▇. §§ 1349.25 et seq. Effective May 24, 2002 |
Covered Loan |
|
Oklahoma |
Consumer Credit Code (codified in various sections of Title 14A) Effective July 1, 2000; amended effective January 1, 2004 |
Subsection 10 Mortgage |
▇-▇-▇
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10 et seq. Effective for loans taken on or after January 1, 2004 |
High Cost Home Loan |
|
West Virginia |
West Virginia Residential Mortgage Lender, Broker and Servicer Act, W. Va. Code ▇▇▇. §§ 31-17-1 et seq. Effective June 5, ▇▇▇▇ |
▇▇▇▇ ▇▇▇▇▇▇▇▇ Mortgage Loan Act Loan |
Standard & Poor’s Covered Loan Categorization
|
State/Jurisdiction |
Name of Anti-Predatory Lending Law/Effective Date |
Category under Applicable Anti-Predatory Lending Law |
|
Georgia (Oct. 1, 2002 – Mar. 6, 2003) |
Georgia Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1, 2002 – March 6, 2003 |
Covered Loan |
|
New Jersey |
New Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22 et seq. Effective November 27, 2003 – July 5, 2004 |
Covered Home Loan |
|
Standard & Poor’s Home Loan Categorization
| ||
|
State/Jurisdiction |
Name of Anti-Predatory Lending Law/Effective Date |
Category under Applicable Anti-Predatory Lending Law |
|
Georgia (Oct. 1, 2002 – Mar. 6, 2003) |
Georgia Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1, 2002 – March 6, 2003 |
Home Loan |
|
New Jersey |
New Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22 et seq. Effective for loans closed on or after November 27, 2003 |
Home Loan |
E-6-4
|
New Mexico |
Home Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq. Effective as of January 1, 2004; Revised as of February 26, 2004 |
Home Loan |
|
North Carolina |
Restrictions and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et seq. Effective July 1, 2000; amended October 1, 2003 (adding open-end lines of credit) |
Consumer Home Loan |
|
South Carolina |
South Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10 et seq. Effective for loans taken on or after January 1, 2004 |
Consumer Home Loan |
E-6-5
|
|
SCHEDULE A |
|
|
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES |
|
Offered Certificates |
S&P |
▇▇▇▇▇’▇ |
|
Class I-A-1 |
AAA |
Aaa |
|
Class I-X-1 |
AAA |
Aaa |
|
Class I-A-2 |
AAA |
Aaa |
|
Class I-X-2 |
AAA |
Aaa |
|
Class II-A-1 |
AAA |
Aaa |
|
Class II-A-2 |
AAA |
Aaa |
|
Class II-X-1 |
AAA |
Aaa |
|
Class II-X-2 |
AAA |
Aaa |
|
Class II-X-3 |
AAA |
Aaa |
|
Class III-A-1 |
AAA |
Aaa |
|
Class III-A-2 |
AAA |
Aaa |
|
Class III-X-1 |
AAA |
Aaa |
|
Class IV-A-1 |
AAA |
Aaa |
|
Class IV-X-1 |
AAA |
Aaa |
|
Class IV-A-2 |
AAA |
Aaa |
|
Class IV-X-2 |
AAA |
Aaa |
|
Class M-X |
AA |
Aa2 |
|
Class M-1 |
AA+ |
Aa1 |
|
Class M-2 |
AA |
Aa2 |
|
Class M-3 |
AA- |
Aa3 |
|
Class M-4 |
A+ |
Aa3 |
|
Class M-5 |
A |
A1 |
|
Class M-6 |
A- |
A2 |
|
Class B-1 |
BBB+ |
A3 |
|
Class B-2 |
BBB |
Baa1 |
|
Class ▇-▇ |
▇▇▇- |
▇▇▇▇ |
|
▇▇▇▇▇ ▇ |
▇▇▇ |
▇▇ |
▇▇▇▇ of the above ratings has been lowered, qualified or withdrawn since the dates of issuance of such ratings by the Rating Agencies.
A-1
SCHEDULE B
MORTGAGE LOAN SCHEDULE
(Provided upon request)
|
|
EXHIBIT I |
FORM OF TRUSTEE LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that ▇▇▇▇▇ Fargo Bank, National Association, a banking corporation, having a place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as Trustee (and in no personal or other representative capacity) under the Pooling and Servicing Agreement, dated as of October 1, 2005, by and among Structured Asset Mortgage Investments II Inc., the Trustee and EMC Mortgage Corporation (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement” capitalized terms not defined herein have the definitions assigned to such terms in the Agreement), relating to the GreenPoint Mortgage Funding Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5, hereby appoints _______________, in its capacity as Servicer under the Agreement, as the Trustee’s true and lawful Special Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, but only in its capacity as Trustee aforesaid, to perform all acts and execute all documents as may be customary, necessary and appropriate to effectuate the following enumerated transactions in respect of any mortgage, deed of trust, promissory note or real estate owned from time to time owned (beneficially or in title, whether the Trustee is named therein as mortgagee or beneficiary or has become mortgagee or beneficiary by virtue of endorsement, assignment or other conveyance) or held by or registered to the Trustee (directly or through custodians or nominees), or in respect of which the Trustee has a security interest or other lien, all as provided under the applicable Agreement and only to the extent the respective Trustee has an interest therein under the Agreement, and in respect of which the Servicer is acting as servicer pursuant to the Agreement (the “Mortgage Documents”).
This appointment shall apply to the following enumerated transactions under the Agreement only:
The modification or re-recording of any Mortgage Document for the purpose of correcting it to conform to the original intent of the parties thereto or to correct title errors discovered after title insurance was issued and where such modification or re-recording does not adversely affect the lien under the Mortgage Document as insured.
2. The subordination of the lien under a Mortgage Document to an easement in favor of a public utility company or a state or federal agency or unit with powers of eminent domain including, without limitation, the execution of partial satisfactions/releases, partial reconveyances and the execution of requests to trustees to accomplish same.
3. The conveyance of the properties subject to a Mortgage Document to the applicable mortgage insurer, or the closing of the title to the property to be acquired as real estate so owned, or conveyance of title to real estate so owned.
4. The completion of loan assumption and modification agreements in respect of Mortgage Documents.
5. The full or partial satisfaction/release of a Mortgage Document or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related note.
6. The assignment of any Mortgage Document, in connection with the repurchase of the mortgage loan secured and evidenced thereby.
7. The full assignment of a Mortgage Document upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related note.
8. With respect to a Mortgage Document, the foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or termination, cancellation or rescission of any such foreclosure, including, without limitation, any and all of the following acts:
the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;
|
|
b. |
the preparation and issuance of statements of breach or non-performance; |
|
|
c. |
the preparation and filing of notices of default and/or notices of sale; |
|
|
d. |
the cancellation/rescission of notices of default and/or notices of sale; |
|
|
e. |
the taking of a deed in lieu of foreclosure; and |
|
|
f. |
the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage Document or state law to expeditiously complete said transactions in paragraphs 8(a) through 8(e), above. |
9. Demand, ▇▇▇ for, recover, collection and receive each and every sum of money, debt, account and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by the Trustee under the Mortgage Documents, and to use or take any lawful means for recovery thereof by legal process or otherwise.
10. Endorse on behalf of the Trustee all checks, drafts and/or negotiable instruments made payable to the Trustee in respect of the Mortgage Documents.
The Trustee gives the Special Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by this Limited Power of Attorney, subject to the terms and conditions set forth in the Agreement including the standard of care applicable to the servicer in the Agreement, and hereby does ratify and confirm what such Special Attorney-in-Fact shall lawfully do or cause to be done by authority hereof.
IN WITNESS WHEREOF, the Trustee has caused its corporate name and seal to be hereto signed and affixed and these presents to be acknowledged by its duly elected and authorized officer this ___ day of ___ , 2005.
▇▇▇▇▇ Fargo Bank, National Association,
as Trustee
By:
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|
Name: |
|
|
|
Title: |
|
|
WITNESS: |
WITNESS: |
|
_______________________________ |
_______________________________ |
|
Name: |
Name: |
|
Title: |
Title: |
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
|
|
▇▇ |
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇ ______________, 2005, before me, the undersigned, a Notary Public in and for said state, personally appeared __________________, personally known to me to be the person whose name is subscribed to the within instrument, and such person acknowledged to me that such person executed the within instrument in such person’s authorized capacity as a Senior Vice President of ▇▇▇▇▇ Fargo Bank, National Association, and that by such signature on the within instrument the entity upon behalf of which such person acted executed the instrument.
|
|
WITNESS my hand and official seal. |
______________________________
Notary Public
EXHIBIT J
[RESERVED]
EXHIBIT K
LOAN LEVEL FORMAT FOR TAPE INPUT,
SERVICER PERIOD REPORTING
The format for the tape should be:
1. Record length of 240
2. Blocking factor of 07 records per block
3. ASCII
4. Unlabeled tape
5. 6250 or 1600 BPI (please indicate)
|
|
COBOL | ||
|
Field Name |
Position |
Length |
"picture" |
|
[Reserved] |
001-002 |
2 |
"01" |
|
Unit Code |
003-004 |
2 |
" " |
|
Loan Number |
005-014 |
10 |
X(10) |
|
Borrower Name |
015-034 |
20 |
X(20) |
|
Old Payment Amount |
035-045 |
11 |
S9(9)V9(02) |
|
Old Loan Rate |
046-051 |
6 |
9(2)V9(04) |
|
Servicer Fee Rate |
052-057 |
6 |
9(2)V9(04) |
|
Servicer Ending Balance |
058-068 |
11 |
S9(9)V9(02) |
|
Servicer Next Due Date |
069-076 |
8 |
CCYYMMDD |
|
Curtail Amt 1 - Before |
077-087 |
11 |
S9(9)V9(02) |
|
Curtail Date 1 |
088-095 |
8 |
CCYYMMDD |
|
Curtail Amt 1 - After |
096-106 |
11 |
S9(9)V9(02) |
|
Curtail Amt 2 - Before |
107-117 |
11 |
S9(9)V9(02) |
|
Curtail Date 2 |
118-125 |
8 |
CCYYMMDD |
|
Curtail Amt 2 - After |
126-136 |
11 |
S9(9)V9(02) |
|
Curtail Amt 3 - Before |
137-147 |
11 |
S9(9)V9(02) |
|
Curtail Date 3 |
148-155 |
8 |
CCYYMMDD |
|
Curtail Amt 3 - After |
156-166 |
11 |
S9(9)V9(02) |
|
New Payment Amount |
167-177 |
11 |
S9(9)V9(02) |
|
New Loan Rate |
178-183 |
6 |
9(2)V9(04) |
|
Index Rate |
184-189 |
6 |
9(2)V9(04) |
|
Remaining Term |
190-192 |
3 |
9(3) |
|
Liquidation Amount |
193-203 |
11 |
S9(9)V9(02) |
|
Action Code |
204-205 |
2 |
X(02) |
|
Scheduled Principal |
206-216 |
11 |
S9(9)V9(02) |
|
Scheduled Interest |
217-227 |
11 |
S9(9)V9(02) |
|
Scheduled Ending Balance |
228-238 |
11 |
S9(9)V9(02) |
|
FILLER |
239-240 |
2 |
X(02) |
Trailer Record:
|
Number of Records |
001-006 |
6 |
9(06) |
|
FILLER |
007-240 |
234 |
X(234) |
Field Names and Descriptions:
|
Field Name |
Description |
|
[Reserved] |
Hard code as "01" used internally |
|
Unit Code |
Hard code as " " used internally |
|
Loan Number |
Investor's loan number |
|
Borrower Name |
Last name of borrower |
|
Old Payment Amount |
P&I amount used for the applied payment |
|
Old Loan Rate |
Gross interest rate used for the applied payment |
|
Servicer Fee Rate |
Servicer's fee rate |
|
Servicer Ending Balance |
Ending actual balance after a payment has been applied |
|
Servicer Next Due Date |
Borrower's next due date for a payment |
|
Curtailment Amount 1 - Before |
Amount of curtailment applied before the payment |
|
Curtailment Date 1 |
Date of curtailment should coincide with the payment date |
|
|
applicable to the curtailment |
|
Curtailment Amount 1 – After |
Amount of curtailment applied after the payment |
|
Curtailment Amount 2 - Before |
Amount of curtailment applied before the payment |
|
Curtailment Date 2 |
Date of curtailment should coincide with the payment date |
|
|
applicable to the curtailment |
|
Curtailment Amount 2 – After |
Amount of curtailment applied after the payment |
|
Curtailment Amount 3 - Before |
Amount of curtailment applied before the payment |
|
Curtailment Date 3 |
Date of curtailment should coincide with the payment date |
|
|
applicable to the curtailment |
|
Curtailment Amount 3 – After |
Amount of curtailment applied after the payment |
New Payment Amount For ARM, Equal, or Buydown loans, when a payment change
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occurs, this is the scheduled payment |
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New Loan Rate |
For ARM loans, when the gross interest rate change occurs, |
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|
this is the scheduled rate |
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Index Rate |
For ARM loans, the index rate used in calculating the new |
|
|
gross interest rate |
Remaining Term For ARM loans, the number of months left on the loan used to determine the new P&I amount
|
Liquidation Amount |
The payoff amount of the loan |
|
Action Code |
For delinquent loans: |
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|
12 -- Relief Provisions |
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|
15 -- Bankruptcy/Litigation |
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|
20 -- Referred for Deed-in-lieu, short sale |
|
|
30 -- Referred to attorney to begin foreclosure |
|
|
60 -- Loan Paid in full |
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|
70 -- Real Estate Owned |
Scheduled PrincipalAmount of principal from borrower payment due to bondholder
Scheduled Interest Amount of interest from borrower payment due to bondholder
|
Scheduled Ending Balance |
Ending scheduled balance of loan |
|
FILLER |
Should be filled with spaces |
EXHIBIT L
REPORTING DATA FOR DEFAULTED LOANS
Data must be submitted to ▇▇▇▇▇ Fargo Bank in an Excel spreadsheet format with fixed field names and data type. The Excel spreadsheet should be used as a template consistently every month when submitting data.
Table: Delinquency
|
|
Name |
Type |
Size |
|
|
Servicer Loan # |
Number (Double) |
8 |
|
|
Investor Loan # |
Number (Double) |
8 |
|
|
Borrower Name |
Text |
20 |
|
|
Address |
Text |
30 |
|
|
State |
Text |
2 |
|
|
Due Date |
Date/Time |
8 |
|
|
Action Code |
Text |
2 |
|
|
FC Received |
Date/Time |
8 |
|
|
File Referred to Atty |
Date/Time |
8 |
|
|
NOD |
Date/Time |
8 |
|
|
Complaint Filed |
Date/Time |
8 |
|
|
Sale Published |
Date/Time |
8 |
|
|
Target Sale Date |
Date/Time |
8 |
|
|
Actual Sale Date |
Date/Time |
8 |
|
|
Loss Mit Approval Date |
Date/Time |
8 |
|
|
Loss Mit Type |
Text |
5 |
|
|
Loss Mit Estimated Completion Date |
Date/Time |
8 |
|
|
Loss Mit Actual Completion Date |
Date/Time |
8 |
|
|
Loss Mit Broken Plan Date |
Date/Time |
8 |
|
|
BK Chapter |
Text |
6 |
|
|
BK Filed Date |
Date/Time |
8 |
|
|
Post Petition Due |
Date/Time |
8 |
|
|
Motion for Relief |
Date/Time |
8 |
|
|
Lift of Stay |
Date/Time |
8 |
|
|
RFD |
Text |
10 |
|
|
Occupant Code |
Text |
10 |
|
|
Eviction Start Date |
Date/Time |
8 |
|
|
Eviction Completed Date |
Date/Time |
8 |
|
|
List Price |
Currency |
8 |
|
|
List Date |
Date/Time |
8 |
|
|
Accepted Offer Price |
Currency |
8 |
|
|
Accepted Offer Date |
Date/Time |
8 |
|
|
Estimated REO Closing Date |
Date/Time |
8 |
|
|
Actual REO Sale Date |
Date/Time |
8 |
•??????????Items in bold are MANDATORY FIELDS. We must receive information in those fields every month in order for your file to be accepted.
The Action Code Field should show the applicable numeric code to indicate that a special action is being taken. The Action Codes are the following:
|
|
12-Relief Provisions |
|
|
15-Bankruptcy/Litigation |
|
|
20-Referred for Deed-in-Lieu |
|
|
30-Referred fore Foreclosure |
|
|
▇▇-▇▇▇▇▇▇ |
|
|
▇▇-▇▇▇▇▇▇▇▇▇▇ |
|
|
▇▇-▇▇▇-▇▇▇▇ for Sale |
|
|
71-Third Party Sale/Condemnation |
|
|
72-REO-Pending Conveyance-Pool Insurance claim filed |
▇▇▇▇▇ Fargo Bank will accept alternative Action Codes to those above, provided that the Codes are consistent with industry standards. If Action Codes other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a description of each of the Action Codes prior to sending the file.
Description of Action Codes:
Action Code 12 - To report a Mortgage Loan for which the Borrower has been granted relief for curing a delinquency. The Action Date is the date the relief is expected to end. For military indulgence, it will be three months after the Borrower's discharge from military service.
Action Code 15 - To report the Borrower's filing for bankruptcy or instituting some other type of litigation that will prevent or delay liquidation of the Mortgage Loan. The Action Date will be either the date that any repayment plan (or forbearance) instituted by the bankruptcy court will expire or an additional date by which the litigation should be resolved.
Action Code 20 - To report that the Borrower has agreed to a deed-in-lieu or an assignment of the property. The Action Date is the date the Servicer decided to pursue a deed-in-lieu or the assignment.
Action Code 30 - To report that the decision has been made to foreclose the Mortgage Loan. The Action Date is the date the Servicer referred the case to the foreclosure attorney.
Action Code 60 - To report that a Mortgage Loan has been paid in full either at, or prior to, maturity.
Action Code 65 - To report that the Servicer is repurchasing the Mortgage Loan.
Action Code 70 - To report that a Mortgage Loan has been foreclosed or a deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of the owner of the Mortgage Loan, has acquired the property and may dispose of it. The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the date the deed is recorded on behalf of the owner of the Mortgage Loan.
Action Code 71 - To report that a Mortgage Loan has been foreclosed and a third party acquired the property, or a total condemnation of the property has occurred. The Action Date is the date of the foreclosure sale or the date the condemnation award was received.
Action Code 72 - To report that a Mortgage Loan has been foreclosed, or a deed-in-lieu has been accepted, and the property may be conveyed to the mortgage insurer and the pool insurance claim has been filed. The Action Date is the date of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement. The following are acceptable:
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|
ASUM- |
Approved Assumption |
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|
BAP- |
Borrower Assistance Program |
|
|
CO- |
Charge Off |
|
|
DIL- |
Deed-in-Lieu |
|
|
FFA- |
Formal Forbearance Agreement |
|
|
MOD- |
Loan Modification |
|
|
PRE- |
Pre-Sale |
|
|
SS- |
Short Sale |
|
|
MISC- |
Anything else approved by the PMI or Pool Insurer |
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above, provided that they are consistent with industry standards. If Loss Mitigation Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a description of each of the Loss Mitigation Types prior to sending the file.
The Occupant Code field should show the current status of the property. The acceptable codes are:
|
|
Mortgagor |
|
|
Tenant |
|
|
Unknown |
|
|
Vacant |
EXHIBIT M
[Reserved]
EXHIBIT N
[Reserved]
EXHIBIT O
[Provided Upon Request]