Execution Copy
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
XXXXX FARGO BANK, N.A.,
Master Servicer, Servicer, Back-Up Servicer and Trust Administrator,
WASHINGTON MUTUAL BANK,
Seller and Servicer,
SELECT PORTFOLIO SERVICING, INC.,
Servicer and Special Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
DATED AS OF SEPTEMBER 1, 2005
relating to
ADJUSTABLE RATE MORTGAGE TRUST 2005-10
ADJUSTABLE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-10
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................2
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES......2
SECTION 2.01. Conveyance of Trust Fund...................................2
SECTION 2.02. Acceptance by the Trustee..................................2
SECTION 2.03. Representations and Warranties of the Sellers,
Master Servicer and Servicers..............................2
SECTION 2.04. Representations and Warranties of the Depositor as
to the Mortgage Loans......................................2
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions..............................................2
SECTION 2.06. Issuance of Certificates...................................2
SECTION 2.07. REMIC Provisions...........................................2
SECTION 2.08. Covenants of the Master Servicer and each Servicer.........2
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................2
SECTION 3.01. Servicers to Service Mortgage Loans........................2
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers...............................................2
SECTION 3.03. Master Servicing by Master Servicer........................2
SECTION 3.04. Trustee to Act as Master Servicer or Servicer..............2
SECTION 3.05. Collection of Mortgage Loans; Collection Accounts;
Certificate Account........................................2
SECTION 3.06. Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts;
Payments of Taxes, Insurance and Other Charges.............2
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Non-Designated Mortgage Loans;
Inspections................................................2
SECTION 3.08. Permitted Withdrawals from the Collection Accounts
and Certificate Account....................................2
SECTION 3.09. Maintenance of Hazard Insurance; Mortgage
Impairment Insurance and Mortgage Guaranty
Insurance Policy; Claims; Restoration of Mortgaged
Property...................................................2
SECTION 3.10. Enforcement of Due on Sale Clauses; Assumption
Agreements.................................................2
SECTION 3.11. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.......................2
SECTION 3.12. Trustee and Trust Administrator to Cooperate;
Release of Mortgage Files..................................2
SECTION 3.13. Documents, Records and Funds in Possession of a
Servicer to be Held for the Trust..........................2
SECTION 3.14. Servicing Fee; Indemnification of Master Servicer..........2
SECTION 3.15. Access to Certain Documentation............................2
SECTION 3.16. Annual Statement as to Compliance..........................2
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements............................2
SECTION 3.18. Maintenance of Fidelity Bond and Errors and
Omissions Insurance........................................2
SECTION 3.19. Special Serviced Mortgage Loans............................2
SECTION 3.20. Indemnification of Servicers and Master Servicer...........2
SECTION 3.21. Notification of Adjustments................................2
SECTION 3.22. Designated Mortgage Loans..................................2
SECTION 3.23. Assigned Prepayment Premiums...............................2
ARTICLE IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS.....................2
SECTION 4.01. Priorities of Distribution.................................2
SECTION 4.02. Allocation of Losses.......................................2
SECTION 4.03. Recoveries.................................................2
SECTION 4.04. Reserved...................................................2
SECTION 4.05. Monthly Statements to Certificateholders...................2
SECTION 4.06. Servicer to Cooperate......................................2
SECTION 4.07. Cross-Collateralization; Adjustments to Available
Funds......................................................2
SECTION 4.08. Reserved...................................................2
SECTION 4.09. Group 6 Basis Risk Reserve Fund............................2
SECTION 4.10. Group 5 Interest Rate Cap Account..........................2
ARTICLE V ADVANCES BY THE MASTER SERVICER AND SERVICERS......................2
SECTION 5.01. Advances by the Master Servicer and Servicers..............2
ARTICLE VI THE CERTIFICATES..................................................2
SECTION 6.01. The Certificates...........................................2
SECTION 6.02. Registration of Transfer and Exchange of
Certificates...............................................2
SECTION 6.03. Mutilated, Destroyed, Lost or Stolen Certificates..........2
SECTION 6.04. Persons Deemed Owners......................................2
SECTION 6.05. Access to List of Certificateholders' Names and
Addresses..................................................2
SECTION 6.06. Maintenance of Office or Agency............................2
SECTION 6.07. Book Entry Certificates....................................2
SECTION 6.08. Notices to Clearing Agency.................................2
SECTION 6.09. Definitive Certificates....................................2
ARTICLE VII THE DEPOSITOR, THE SELLER, THE MASTER SERVICER, THE
SERVICERS AND THE SPECIAL SERVICER..............................2
SECTION 7.01. Liabilities of the Sellers, the Depositor, the
Master Servicer, the Back-Up Servicer, the
Servicers and the Special Servicer.........................2
SECTION 7.02. Merger or Consolidation of the Sellers, the
Depositor, the Back-Up Servicer, the Master
Servicer, the Servicers or the Special Servicer............2
SECTION 7.03. Limitation on Liability of the Sellers, the
Depositor, the Master Servicer, the Back-Up
Servicer, the Servicers, the Special Servicer and
Others.....................................................2
SECTION 7.04. Master Servicer and Servicer Not to Resign;
Transfer of Servicing......................................2
SECTION 7.05. Master Servicer, Sellers and Servicers May Own
Certificates...............................................2
SECTION 7.06. Termination of Duties of the Back-Up Servicer..............2
ARTICLE VIII DEFAULT.........................................................2
SECTION 8.01. Events of Default..........................................2
SECTION 8.02. Master Servicer or Trust Administrator to Act;
Appointment of Successor...................................2
SECTION 8.03. Notification to Certificateholders.........................2
SECTION 8.04. Waiver of Events of Default................................2
ARTICLE IX CONCERNING THE TRUSTEE............................................2
SECTION 9.01. Duties of Trustee..........................................2
SECTION 9.02. Certain Matters Affecting the Trustee......................2
SECTION 9.03. Trustee Not Liable for Certificates or Mortgage
Loans......................................................2
SECTION 9.04. Trustee May Own Certificates...............................2
SECTION 9.05. Trustee's Fees and Expenses................................2
SECTION 9.06. Eligibility Requirements for Trustee.......................2
SECTION 9.07. Resignation and Removal of Trustee.........................2
SECTION 9.08. Successor Trustee..........................................2
SECTION 9.09. Merger or Consolidation of Trustee.........................2
SECTION 9.10. Appointment of Co-Trustee or Separate Trustee..............2
SECTION 9.11. Office of the Trustee......................................2
ARTICLE X CONCERNING THE TRUST ADMINISTRATOR.................................2
SECTION 10.01. Duties of Trust Administrator..............................2
SECTION 10.02. Certain Matters Affecting the Trust Administrator..........2
SECTION 10.03. Trust Administrator Not Liable for Certificates or
Mortgage Loans.............................................2
SECTION 10.04. Trust Administrator May Own Certificates...................2
SECTION 10.05. Trust Administrator's Fees and Expenses....................2
SECTION 10.06. Eligibility Requirements for Trust Administrator...........2
SECTION 10.07. Resignation and Removal of Trust Administrator.............2
SECTION 10.08. Successor Trust Administrator..............................2
SECTION 10.09. Merger or Consolidation of Trust Administrator.............2
SECTION 10.10. Appointment of Co-Trust Administrator or Separate
Trust Administrator........................................2
SECTION 10.11. Office of the Trust Administrator..........................2
SECTION 10.12. Tax Return.................................................2
SECTION 10.13. Commission Reporting.......................................2
SECTION 10.14. Determination of Certificate Index.........................2
ARTICLE XI TERMINATION.......................................................2
SECTION 11.01. Termination upon Liquidation or Purchase of all
Mortgage Loans.............................................2
SECTION 11.02. Determination of the Terminating Entity....................2
SECTION 11.03. Procedure Upon Optional Termination or Terminating
Auction Sale...............................................2
SECTION 11.04. Additional Termination Requirements........................2
ARTICLE XII MISCELLANEOUS PROVISIONS.........................................2
SECTION 12.01. Amendment..................................................2
SECTION 12.02. Recordation of Agreement; Counterparts.....................2
SECTION 12.03. Governing Law..............................................2
SECTION 12.04. Intention of Parties.......................................2
SECTION 12.05. Notices....................................................2
SECTION 12.06. Severability of Provisions.................................2
SECTION 12.07. Limitation on Rights of Certificateholders.................2
SECTION 12.08. Certificates Nonassessable and Fully Paid..................2
SECTION 12.09. Protection of Assets.......................................2
SECTION 12.10. Non-Solicitation...........................................2
ARTICLE XIII SPS AND THE MASTER SERVICER.....................................2
SECTION 13.01. Reports and Notices........................................2
SECTION 13.02. Master Servicer's Oversight With Respect to the SPS
Mortgage Loans.............................................2
SECTION 13.03. Termination................................................2
SECTION 13.04. Liability and Indemnification..............................2
SECTION 13.05. Confidentiality............................................2
EXHIBITS
Exhibit A: Form of Class A Certificate..............................A-1
Exhibit B: Form of Class M Certificate..............................B-1
Exhibit C: Form of Class B Certificate..............................C-1
Exhibit D-1: Form of Class AR Certificate...........................D-1-1
Exhibit D-2: Form of Class AR-L Certificate.........................D-2-1
Exhibit E: Form of Class P Certificate..............................E-1
Exhibit F: Form of Class X Certificate..............................F-1
Exhibit G: Reserved.................................................G-1
Exhibit H: Form of Servicer Information.............................H-1
Exhibit I-1: Form of Trust Receipt and Initial Certification..........I-1
Exhibit I-2: Form of Trust Receipt and Subsequent Certification.......I-1
Exhibit J: Form of Trust Receipt and Final Certification............J-1
Exhibit K: Form of Request for Release..............................K-1
Exhibit L: Form of Transferor Certificate...........................L-1
Exhibit M-1: Form of Investment Letter..............................M-1-1
Exhibit M-2: Form of Rule 144A Letter...............................M-2-1
Exhibit N: Form of Investor Transfer Affidavit and Agreement........N-1
Exhibit O: Form of Transfer Certificate.............................O-1
Exhibit P: Form of SPS Mortgage Loans Report......................P-1-1
Exhibit Q: Form of Foreclosure Settlement Statement.................Q-1
Exhibit R: Form of Subsequent Transfer Agreement....................R-1
Exhibit S: Form of Monthly Statement to Certificateholders..........S-1
Exhibit T: Form of Depositor Certification .........................T-1
Exhibit U: Form of Trust Administrator Certification ...............U-1
Exhibit V-1: Form of Master Servicer Certification .................V-1-1
Exhibit V-2: Form of Servicer Certification ........................V-2-1
Exhibit W: Form of Certification Regarding Substitution of
Defective Mortgage Loans ...............................W-1
SCHEDULES
Schedule I: Mortgage Loan Schedule...................................I-1
Schedule IIA: Representations and Warranties of Seller - DLJMC.......IIA-1
Schedule IIB: Representations and Warranties of Seller and
Servicer - WMB.........................................IIB-1
Schedule IIC: Representations and Warranties of Master Servicer -
Xxxxx Fargo............................................IIC-1
Schedule IID: Representations and Warranties of Servicer and
Special Servicer - SPS.................................IID-1
Schedule IIE: Representations and Warranties of Servicer - Xxxxx
Fargo..................................................IIE-1
Schedule IIIA: Representations and Warranties of DLJMC - DLJMC
Mortgage Loans........................................IIIA-1
Schedule IIIB: Representations and Warranties of WMB - WMB
Mortgage Loans........................................IIIB-1
APPENDICES
Appendix A: Calculation of Class Y Principal Reduction Amounts Appendix A-1
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1,
2005, is hereby executed by and among CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as depositor (the "Depositor"), DLJ MORTGAGE CAPITAL, INC.
("DLJMC"), as a seller (in such capacity, a "Seller"), WASHINGTON MUTUAL BANK
("WMB"), as a seller (in such capacity, a "Seller") and as a servicer (in
such capacity, a "Servicer"), XXXXX FARGO BANK, N.A., as master servicer (in
such capacity, the "Master Servicer"), as a servicer (in such capacity, a
"Servicer"), as back-up servicer (in such capacity, the "Back-Up Servicer")
and as trust administrator (in such capacity, the "Trust Administrator"),
SELECT PORTFOLIO SERVICING, INC. ("SPS"), as a servicer (in such capacity, a
"Servicer"), WILSHIRE CREDIT CORPORATION, as special servicer (in such
capacity, the "Special Servicer"), and U.S. BANK NATIONAL ASSOCIATION, as
trustee (in such capacity, the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined will have the meanings assigned to them
in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund (other than the
Trust's rights under the Group 5 Interest Rate Cap Agreement) that is hereby
conveyed to the Trustee in return for the Certificates. The Trust Fund
(exclusive of any entitlement to Assigned Prepayment Premiums, the Group 5
Interest Rate Cap Agreement and the assets held in the Group 5 Interest Rate
Cap Account, the Group 6 Basis Risk Reserve Fund, the Prefunding Account and
the Capitalized Interest Account) for federal income tax purposes shall
consist of five REMICs (referred to as "REMIC I," "REMIC II," "REMIC III" and
"REMIC IV").
REMIC I
As provided herein, the Trust Administrator will make an election to
treat the segregated pool of assets consisting of the Group 1, Group 2,
Group 3 and Group 4 Mortgage Loans and certain other related assets
(exclusive of any entitlement to Assigned Prepayment Premiums, the Group 5
Interest Rate Cap Agreement and the assets held in the Group 5 Interest Rate
Cap Account, the Group 6 Basis Risk Reserve Fund, the Prefunding Account and
the Capitalized Interest Account) subject to this Agreement as a real estate
mortgage investment conduit (a "REMIC") for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I." Component I
of the Class AR-L 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, remittance rate (the "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
Class Principal Balance of Component I of the Class AR-L Certificates. The
"latest possible maturity date" (determined solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) for each REMIC I Regular
Interest shall be the Maturity Date. None of the REMIC I Regular Interests
will be certificated.
Class Designation Initial
for each Uncertificated
REMIC I Regular Principal
Interest and Uncertificated Balance or
Component I of REMIC I Class
the Class AR-L Type of Pass-Through Principal
Certificates Interest Rate Balance Final Maturity Date*
--------------- -------- ------------- --------------- --------------------
Class Y-1 Regular Variable(1) $ 48,803.72 January 2036
Class Y-2 Regular Variable(2) $ 114,680.86 January 2036
Class Y-3 Regular Variable(3) $ 137,605.00 January 2036
Class Y-4 Regular Variable(4) $ 53,219.01 January 2036
Class Z-1 Regular Variable(1) $ 97,558,632.75 January 2036
Class Z-2 Regular Variable(2) $229,247,038.01 January 2036
Class Z-3 Regular Variable(3) $275,071,456.53 January 2036
Class Z-4 Regular Variable(4) $106,384,430.45 January 2036
Component I of
the Class AR-L Residual Variable(1) $ 50.00 January 2036
-----------------
* The Distribution Date in the specified month, which is the month following
the month the latest maturing Mortgage Loan in the related Loan
Group matures. For federal income tax purposes, for each Class of REMIC I
Regular and Residual 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
and Component I of the Class AR-L Certificates on each Distribution Date
will have accrued at the weighted average of the Net Mortgage Rates for
the Group 1 Loans on the applicable Uncertificated Principal Balance or
Class 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 2 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 3 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 4 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
REMIC II
As provided herein, the Trust Administrator will make an election to
treat the segregated pool of assets consisting of the Group 5 Mortgage Loans
and certain other related assets (exclusive of any entitlement to Assigned
Prepayment Premiums, the Group 5 Interest Rate Cap Agreement and the assets
held in the Group 5 Interest Rate Cap Account, the Group 6 Basis Risk Reserve
Fund, the Prefunding Account and the Capitalized Interest Account) subject to
this Agreement as a real estate mortgage investment conduit (a "REMIC") for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." Component II of the Class AR-L Certificates will
represent the sole Class of "residual interests" in REMIC II for purposes of
the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, remittance rate (the
"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"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC II Regular Interest shall be the
Maturity Date. None of the REMIC II Regular Interests will be certificated.
Class Designation Initial
for each Uncertificated
REMIC II Regular Principal
Interest and Uncertificated Balance or
Component II of REMIC II Class
the Class AR-L Type of Pass-Through Principal
Certificates Interest Rate Balance Final Maturity Date*
--------------- -------- ------------- --------------- --------------------
Class LT-1 Regular Variable(1) $385,783,388.78 January 2036
Class LT-2 Regular Variable(1) $ 10,410.75 January 2036
Class LT-3 Regular 0.00% $ 28,174.26 January 2036
Class LT-4 Regular Variable(2) $ 28,174.26 January 2036
Component II of
the Class AR-L Residual N/A $ 0.00 January 2036
-----------------
* The Distribution Date in the specified month, which is the month
following the month the latest maturing Mortgage Loan in the related Loan
Group matures. For federal income tax purposes, for each Class of
REMIC III Regular and Residual Interests, the "latest possible maturity
date" shall be the Final Maturity Date.
(1) Interest distributed to the REMIC III Regular Interests LT-1 and LT-2
on each Distribution Date will have accrued at the weighted average of
the Net Mortgage Rates for the Group 5 Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date
(2) Interest distributed to the REMIC III Regular Interest LT-4 on each
Distribution Date will have accrued at twice the weighted average of the
Net Mortgage Rates for the Group 5 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
REMIC III
As provided herein, the Trust Administrator will make an election to
treat the segregated pool of assets consisting of the Group 6 Mortgage Loans
and certain other related assets (exclusive of any entitlement to Assigned
Prepayment Premiums, the Group 5 Interest Rate Cap Agreement and the assets
held in the Group 5 Interest Rate Cap Account, the Group 6 Basis Risk Reserve
Fund, the Prefunding Account and the Capitalized Interest Account) subject to
this Agreement as a real estate mortgage investment conduit (a "REMIC") for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III." Component III of the Class AR-L Certificates will
represent the sole Class of "residual interests" in REMIC III for purposes of
the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, remittance rate (the
"Uncertificated REMIC III Pass-Through Rate") and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC III (the
"REMIC III Regular Interests"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC III Regular Interest shall be the
Maturity Date. None of the REMIC III Regular Interests will be certificated.
Class Designation Initial
for each Uncertificated
REMIC III Regular Principal
Interest and Uncertificated Balance or
Component III of REMIC III Class
the Class AR-L Type of Pass-Through Principal
Certificates Interest Rate Balance Final Maturity Date*
--------------- -------- ------------- --------------- --------------------
Class 6-A-1L Regular Variable(1) $ 75,000,000.00 January 2036
Class 6-A-2-1L Regular Variable(1) $136,140,000.00 January 2036
Class 6-A-2-2L Regular Variable(1) $ 16,960,000.00 January 2036
Class 6-B-1L Regular Variable(1) $ 6,020,000.00 January 2036
Class 6-B-2L Regular Variable(1) $ 2,285,000.00 January 2036
Class 6-B-3L Regular Variable(1) $ 1,325,000.00 January 2036
Class 6-B-4L Regular Variable(1) $ 1,685,000.00 January 2036
Class 6-B-5L Regular Variable(1) $ 720,000.00 January 2036
Class 6-B-6L Regular Variable(1) $ 604,561.39 January 2036
Component III
of the
Class AR-L Residual N/A $ 0.00 January 2036
-----------------
* The Distribution Date in the specified month, which is the month
following the month the latest maturing Mortgage Loan in the related Loan
Group matures. For federal income tax purposes, for each Class of
REMIC III Regular and Residual Interests, the "latest possible maturity
date" shall be the Final Maturity Date.
(1) Interest distributed to the REMIC III Regular Interests 0-X-0X,
0-X-0-0X, 0-X-0-0X, 0-X-0X, 0-X-0X, 0-X-0X, 0-X-0X, 0-X-0X and 6-B-6L on
each Distribution Date will have accrued at the weighted average of the
Net Mortgage Rates for the Group 6 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
REMIC IV
As provided herein, the Trust Administrator will elect to treat
the segregated pool of assets consisting of the REMIC I Regular Interests,
REMIC II Regular Interests and REMIC III Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as REMIC IV. The Class AR 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 and the
footnotes that follow irrevocably sets forth the designation, Pass-Through
Rate, aggregate Initial Class Principal Balance and certain other features
for each Class of Certificates comprising the interests representing "regular
interests" in REMIC IV and the Class AR Certificates. The "latest possible
maturity date" (determined solely for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii)) for each Class of REMIC IV Regular
Certificates shall be the Maturity Date.
Integral
Class Multiples
Principal Pass-Through Minimum in Excess
Class Balance Rate (per annum) Denomination of Minimum*
----------- ------------- --------------- ------------ -----------
Class 1-A-1 $40,000,000.00 Variable(1) $25,000 $1
Class 1-A-2-1 $49,872,000.00 Variable(1) $25,000 $1
Class 1-A-2-2 $ 2,708,000.00 Variable(1) $25,000 $1
Class 2-A-1 $217,550,000.00 Variable(2) $25,000 $1
Class 3-A-1-1 $102,000,000.00 Variable(3) $25,000 $1
Class 3-A-1-2 $ 5,540,000.00 Variable(3) $25,000 $1
Class 3-A-2 $98,220,000.00 Variable(3) $25,000 $1
Class 3-A-3-1 $52,428,000.00 Variable(3) $25,000 $1
Class 3-A-3-2 $ 2,847,000.00 Variable(3) $25,000 $1
Class 4-A-1 $90,470,000.00 Variable(4) $25,000 $1
Class 4-A-2 $10,485,000.00 Variable(4) $25,000 $1
Class 5-A-1 $320,000,000.00 Variable(5) $25,000 $1
Class 5-A-2 $35,560,000.00 Variable(6) $25,000 $1
Class 6-A-1 $75,000,000.00 Variable(7) $25,000 $1
Class 6-A-2-1 $136,140,000.00 Variable(8) $25,000 $1
Class 6-A-2-2 $16,960,000.00 Variable(9) $25,000 $1
Class 6-X Notional(10) Variable(11) $25,000 $1
Class 5-M-1 $12,150,000.00 Variable(12) $25,000 $1
Class 5-M-2 $ 8,490,000.00 Variable(13) $25,000 $1
Class 5-M-3 $ 5,790,000.00 Variable(14) $25,000 $1
Class 5-M-4 $ 1,930,000.00 Variable(15) $25,000 $1
Class 5-M-5 $ 1,930,000.00 Variable(16) $25,000 $1
Class C-B-1 $19,490,000.00 Variable(17) $25,000 $1
Class C-B-2 $ 5,670,000.00 Variable(17) $25,000 $1
Class C-B-3 $ 3,540,000.00 Variable(17) $25,000 $1
Class C-B-4 $ 3,545,000.00 Variable(17) $25,000 $1
Class C-B-5 $ 2,480,000.00 Variable(17) $25,000 $1
Class C-B-6 $ 1,770,816.33 Variable(17) $25,000 $1
Class 6-B-1 $ 6,020,000.00 Variable(18) $25,000 $1
Class 6-B-2 $ 2,285,000.00 Variable(19) $25,000 $1
Class 6-B-3 $ 1,325,000.00 Variable(20) $25,000 $1
Class 6-B-4 $ 1,685,000.00 Variable(21) $25,000 $1
Class 6-B-5 $ 720,000.00 Variable(21) $25,000 $1
Class 6-B-6 $ 604,561.39 Variable(21) $25,000 $1
Class 5-X $ 148.06(22) Variable(23) (24) N/A
Class P (25) N/A (26) N/A
Class AR $ 0.00 N/A (27) N/A
-------------------
* Except for one certificate for each of the Class C-B-6 and Class 6-B-6
Certificates which shall contain any stub piece of less than $1.
------------------------------------------------------------------------------
(1) With respect to each Distribution Date, the Pass-Through Rate for the
Class 1-A-1, Class 1-A-2-1 and Class 1-A-2-2 Certificates shall be a per
annum rate equal to the Net WAC Rate for Loan Group 1 for that
Distribution Date.
(2) With respect to each Distribution Date, the Pass-Through Rate for the
Class 2-A-1 Certificates shall be a per annum rate equal to the Net WAC
Rate for Loan Group 2 for that Distribution Date.
(3) With respect to each Distribution Date, the Pass-Through Rate for the
Class 3-A-1-1, Class 3-A-1-2, Class 3-A-2, Class 3-A-3-1 and Class 3-A-3-2
Certificates shall be a per annum rate equal to the Net WAC Rate for Loan
Group 3 for that Distribution Date.
(4) With respect to each Distribution Date, the Pass-Through Rate for the
Class 4-A-1 and Class 4-A-2 Certificates shall be a per annum rate equal
to the Net WAC Rate for Loan Group 4 for that Distribution Date.
(5) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-A-1 Certificates is 4.1010% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-A-1 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(6) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-A-2 Certificates is 4.1610% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-A-2 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(7) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-A-1 Certificates is 4.1110% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-A-1 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(8) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-A-2-1 Certificates is 4.0910% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-A-2-1 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(9) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-A-2-2 Certificates is 4.1610% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-A-2-2 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(10) These certificates will not receive any distributions of principal, but
will accrue interest on the Class 6-X Notional Amount, which with respect
to any date of determination will equal the aggregate Class Principal
Balance of the Group 6 LIBOR Certificates.
(11) The initial Pass-Through Rate on the Class 6-X Certificates is
approximately 0.0133% per annum. After the first Distribution Date, the
Pass-Through Rate on these certificates will be equal to the Class 6-X
Pass-Through Rate. For federal income tax purposes the foregoing rate is
expressed as a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of (i) the Uncertificated
Pass-Through Rate for REMIC III Regular Interest LT1 minus the related
Marker Rate, applied to a notional amount equal to the Uncertificated
Principal Balance of REMIC III Regular Interest LT1, (ii) the
Uncertificated Pass-Through Rate for REMIC III Regular Interest LT2 minus
the related Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT2 and
(iii) the Uncertificated Pass-Through Rate for REMIC III Regular Interest
LT4 minus twice the related Marker Rate, applied to a notional amount
equal to the Uncertificated Principal Balance of REMIC III Regular
Interest LT4, and the denominator of which is the aggregate Uncertificated
Principal Balance of the REMIC III Regular Interests.
(12) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-M-1 Certificates is 4.3210% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-M-1 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(13) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-M-2 Certificates is 4.5110% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-M-2 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(14) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-M-3 Certificates is 5.1410% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-M-3 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(15) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-M-4 Certificates is 5.7410% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-M-4 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(16) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 5-M-5 Certificates is 6.0410% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 5-M-5 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net Funds Cap and (c) 11.00%.
(17) With respect to each Distribution Date, the Pass-Through Rate for the
Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and
Class C-B-6 Certificates shall be a per annum rate equal to the quotient,
expressed as a percentage of (a) the sum of (i) the product of (x) the Net
WAC Rate of Loan Group 1 for that Distribution Date and (y) the
Subordinate Component Balance for Loan Group 1 immediately prior to such
Distribution Date, (ii) the product of (x) the Net WAC Rate of Loan
Group 2 for that Distribution Date and (y) the Subordinate
Component Balance for Loan Group 2 immediately prior to such Distribution
Date, (iii) the product of (x) the Net WAC Rate of Loan Group 3 for that
Distribution Date and (y) the Subordinate Component Balance for Loan
Group 3 immediately prior to such Distribution Date and (iv) the product
of (x) the Net WAC Rate of Loan Group 4 for that Distribution Date and
(y) the Subordinate Component Balance for Loan Group 4 immediately prior
to such Distribution Date.
(18) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-B-1 Certificates is 4.3410% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-B-1 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(19) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-B-2 Certificates is 4.4910% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-B-2 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(20) The Pass-Through Rate for the October 2005 Distribution Date for the
Class 6-B-3 Certificates is 5.0910% per annum. After such Distribution
Date, the Pass-Through Rate for the Class 6-B-3 Certificates shall be a
per annum rate equal to the least of (a) the sum of the applicable
Certificate Index and the applicable Certificate Margin for such
Distribution Date, (b) the Net WAC Rate for Loan Group 6 and (c) 10.50%.
(21) With respect to each Distribution Date, the Pass-Through Rate for the
Class 6-B-4, Class 6-B-5 and Class 6-B-6 Certificates shall be a per annum
rate equal to the Net WAC Rate for Loan Group 6 for that Distribution Date.
(22) The Class 5-X Certificates will not accrue interest on their Class
Principal Balance. The Class 5-X Certificates accrue interest on the
Class 5-X Notional Amount.
(23) The Class 5-X Certificates will be comprised of two REMIC IV regular
interests, a principal only regular interest designated 5-X-PO and an
interest only regular interest designated 5-X-IO, which will be entitled
to distributions as set forth herein. On each Distribution Date, the
Class 5-X Certificates shall be entitled to the Class 5-X Distributable
Amount. With respect to any Distribution Date, interest accrued on the
Class 5-X Certificates during the related Accrual Period shall equal
interest at the related Pass-Through Rate on the Class 5-X Notional Amount
immediately prior to such Distribution Date, in each case reduced by any
interest shortfalls with respect to the Mortgage Loans in the related Loan
Group including Prepayment Interest Shortfalls to the extent not covered
by Compensating Interest Payments. The Pass-Through Rate for the
Class 5-X Certificates or the REMIC IV Regular Interest 5-X-IO for any
Distribution Date shall equal a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the product of (a) 30
and (b) the sum of the amounts calculated pursuant to clauses (i) through
(iv) below, and the denominator of which is the product of (a) the actual
number of days in the related Accrual Period and (b) the aggregate
principal balance of the REMIC II Regular Interests LT1, LT2, LT3 and
LT4. For purposes of calculating the Pass-Through Rate for the Class 5-X
Certificates, the numerator is equal to the sum of the following
components:
(i) the Uncertificated Pass-Through Rate for REMIC II Regular
Interests LT1 minus the Marker Rate, applied to a notional amount
equal to the aggregate Uncertificated Principal Balance of REMIC II
Regular Interests LT1;
(ii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT2 minus the Marker Rate, applied to a notional amount
equal to the Uncertificated Principal Balance of REMIC II Regular
Interest LT2; and
(iii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT4 minus twice the Marker Rate, applied to a notional
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT4.
Accrued interest on the Class 5-X Certificates shall accrue on the basis
of a 360-day year and the actual number of days in the related Accrual
Period. Payments to any Class of Group 5 Certificates in respect of Basis
Risk Shortfalls from the Group 5 Available Distribution Amount shall be
deemed to have first been distributed from REMIC IV to the holders of the
Class 5-X Certificates in respect of the Class 5-X-IO REMIC IV Regular
Interest and then paid by such holders to such Class of Group 5
Certificates.
(24) The Class 5-X Certificates will be issued in certificated,
fully-registered form in minimum denominations of 20% of the Percentage
Interest therein and increments of 10% in excess thereof.
(25) The Class P Certificates will not have a Class Principal Balance. The
Class P Certificates shall have an initial notional balance of
$1,315,515,625.78 and will be entitled to distributions of Assigned
Prepayment Premiums only. Such entitlement shall not be an interest in
any REMIC created hereunder.
(26) The Class P Certificates will be issued in certificated,
fully-registered form in minimum denominations of 20% of the Percentage
Interest therein and increments of 10% in excess thereof.
(27) The Class AR Certificates are issued in minimum Percentage Interests of
20%.
For the avoidance of doubt, the Trust Administrator shall account
for any interest amount due to a Certificateholder in excess of the interest
rate on the REMIC regular interest issued by REMIC IV corresponding to such
Certificate as part of the payment made to the Class 5-X Certificates, to the
extent it is entitled to funds from the REMIC, and then paid outside of the
REMIC pursuant to a separate contractual right to such Certificateholder.
The foregoing REMIC structure is intended to cause all of the
cash from the Mortgage Loans to flow through to REMIC IV as cash flow on a
REMIC regular interest, without creating any shortfall-actual or potential
(other than for credit losses) to any REMIC regular interest. To the extent
that the structure is believed to diverge from such intention the Trust
Administrator shall resolve ambiguities to accomplish such result and shall
to the extent necessary rectify any drafting errors or seek clarification to
the structure without Certificateholder approval (but with guidance of
counsel) to accomplish such intention.
Set forth below are designations of Classes of Certificates to
the categories used herein:
Book-Entry Certificates.... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates....... The Group 1, Group 2, Group 3, Group 4, Group 5
Senior Certificates and Group 6 Senior
Certificates.
Class B Certificates....... The Class C-B Certificates and Class 6-B
Certificates.
Class C-B Certificates..... The Class C-B-1, Class C-B-2, Class C-B-3,
Class C-B-4, Class C-B-5 and Class C-B-6
Certificates.
Class 6-B Certificates..... The Class 6-B-1, Class 6-B-2, Class 6-B-3,
Class 6-B-4, Class 6-B-5 and Class 6-B-6
Certificates.
Class M Certificates....... The Class 5-M-1, Class 5-M-2, Class 5-M-3,
Class 5-M-4 and Class 5-M-5 Certificates.
ERISA-Restricted Residual Certificates and Private Certificates;
Certificates............... and any Certificates that do not satisfy the
applicable ratings requirement under the
Underwriter's Exemption.
Group 1 Certificates....... The Class 1-A-1, Class 1-A-2-1, Class 1-A-2-2 and
Residual Certificates.
Group 2 Certificates....... The Class 2-A-1 Certificates.
Group 3 Certificates....... The Class 3-A-1-1, Class 3-A-1-2, Class 3-A-2,
Class 3-A-3-1 and Class 3-A-3-2 Certificates.
Group 4 Certificates....... The Class 4-A-1 and Class 4-A-2 Certificates.
Group 5 Certificates....... The Group 5 Senior Certificates, Class 5-X
Certificates and Class M Certificates.
Group 5 LIBOR Certificates. The Group 5 Senior Certificates and Class M
Certificates.
Group 5 Senior Certificates The Class 5-A-1 and Class 5-A-2 Certificates.
Group 6 Certificates....... The Group 6 Senior Certificates, the Class 6-X
Certificates and the Group 6 Subordinate
Certificates.
Group 6 LIBOR Certificates. The Group 6 Senior Certificates, Class 6-B-1
Certificates, Class 6-B-2 Certificates and
Class 6-B-3 Certificates.
Group 6 Senior Certificates The Class 6-A-1, Class 6-A-2-1 and Class 6-A-2-2
Certificates.
Group 6 Subordinate The Class 6-B-1, Class 6-B-2, Class 6-B-3,
Certificates............... Class 6-B-4, Class 6-B-5 and Class 6-B-6
Certificates.
LIBOR Certificates......... The Group 5 LIBOR Certificates and the Group 6
LIBOR Certificates.
Notional Amount Certificates The Class 5-X Certificates and Class 6-X
Certificates.
Offered Certificates....... All Classes of Certificates other than the
Private Certificates.
Private Certificates....... The Class C-B-4, Class C-B-5, Class C-B-6,
Class 6-B-4, Class 6-B-5, Class 6-B-6, Class 5-X
and Class P Certificates.
Physical Certificates...... The Residual Certificates and the Private
Certificates.
Rating Agencies............ Xxxxx'x, S&P and DBRS.
Regular Certificates....... All Classes of Certificates other than the
Residual Certificates.
Residual Certificates...... The Class AR and Class AR-L Certificates.
Senior Certificates........ The Class A Certificates.
Subordinate Certificates... The Class M, Class C-B, Class 6-B and Class 5-X
Certificates.
All covenants and agreements made by the Depositor herein are for
the benefit and security of the Certificateholders. The Depositor is
entering into this Agreement, and the Trustee is accepting the trusts created
hereby and thereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
The parties hereto intend to effect an absolute sale and
assignment of the Mortgage Loans to the Trustee for the benefit of
Certificateholders under this Agreement. However, the Depositor and the
Sellers will hereunder absolutely assign and, as a precautionary matter grant
a security interest, in and to its rights, if any, in the related Mortgage
Loans to the Trustee on behalf of Certificateholders to ensure that the
interest of the Certificateholders hereunder in the Mortgage Loans is fully
protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trustee and the Trust Administrator agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1933 Act: The Securities Act of 1933, as amended.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Period: For any interest bearing Class of Certificates,
other than the LIBOR Certificates, and any Distribution Date, the calendar
month immediately preceding such Distribution Date and with respect to the
LIBOR Certificates, the period beginning on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Accrual
Period) and ending on the day immediately preceding such Distribution Date.
Advance: With respect to any Non-Designated Mortgage Loan and
any Distribution Date, any payment required to be made by a Servicer or the
Master Servicer, as applicable, with respect to such Distribution Date
pursuant to Section 5.01.
With respect to any PHH Mortgage Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) PHH Mortgage on the
Remittance Date (as defined in the PHH Mortgage Underlying Servicing
Agreement) in the month of such Distribution Date pursuant to Section 5.03 of
the PHH Mortgage Underlying Servicing Agreement or (ii) the Master Servicer
with respect to such Distribution Date pursuant to Section 3.22(b) of this
Agreement.
With respect to any National City Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) National City on
the Remittance Date (as defined in the National City Underlying Servicing
Agreement) in the month of such Distribution Date pursuant to Section 5.03 of
the National City Underlying Servicing Agreement or (ii) the Master Servicer
with respect to such Distribution Date pursuant to Section 3.22(b) of this
Agreement.
With respect to any IndyMac Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) IndyMac with
respect to the Remittance Date (as defined in the IndyMac Underlying
Servicing Agreement) in the month of such Distribution Date pursuant to
Section 5.03 of the IndyMac Underlying Servicing Agreement or (ii) the Master
Servicer with respect to such Distribution Date pursuant to
Section 3.22(b) of this Agreement.
With respect to any GMAC Mortgage Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) GMAC Mortgage with
respect to the Remittance Date (as defined in the GMAC Mortgage Underlying
Servicing Agreement) in the month of such Distribution Date pursuant to
Section 5.03 of the GMAC Mortgage Underlying Servicing Agreement or (ii) the
Master Servicer with respect to such Distribution Date pursuant to
Section 3.22(b) of this Agreement.
With respect to any Countrywide Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) Countrywide with
respect to the Remittance Date (as defined in the Countrywide Underlying
Servicing Agreement) in the month of such Distribution Date pursuant to
Subsection 11.19 of Exhibit 9 of the Countrywide Underlying Servicing
Agreement or (ii) the Master Servicer with respect to such Distribution Date
pursuant to Section 3.22(b) of this Agreement.
With respect to any EverBank Serviced Mortgage Loan and any
Distribution Date, the payment required to be made by (i) EverBank with
respect to the Remittance Date (as defined in the EverBank Underlying
Servicing Agreement) in the month of such Distribution Date pursuant to
Section 5.03 of the EverBank Underlying Servicing Agreement or (ii) the
Master Servicer with respect to such Distribution Date pursuant to
Section 3.22(b) of this Agreement.
Adverse REMIC Event: As defined in Section 2.07(f).
Adjustment Date: With respect to each Mortgage Loan, each
adjustment date on which the Mortgage Rate thereon changes pursuant to the
related Mortgage Note. The first Adjustment Date following the Cut-off Date
as to each such Mortgage Loan is set forth in the Mortgage Loan Schedule.
Aggregate Groups 1-4 Collateral Balance: With respect to any
date of determination, will be equal to the sum of the Aggregate Loan Group
Balances for Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group 4 as of
such date of determination.
Aggregate Loan Group Balance: With respect to any Loan Group and
as of any date of determination, will be equal to the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group as of the first
day of the month of such date of determination, plus, with respect to Loan
Group 5, the amount on deposit in the Prefunding Account as of the first day
of such month.
Aggregate Subsequent Transfer Amount: With respect to any
Subsequent Transfer Date, the aggregate Stated Principal Balances as of the
applicable Cut-off Date of the Subsequent Mortgage Loans conveyed on such
Subsequent Transfer Date, as listed on the revised Mortgage Loan Schedule
delivered pursuant to Section 2.01(e); provided, however, that such amount
shall not exceed the amount on deposit in the Prefunding Account.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Ancillary Income: All income derived from the Non-Designated
Mortgage Loans, other than Servicing Fees and Master Servicing Fees,
including but not limited to, late charges, fees received with respect to
checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other
incidental fees and charges. Ancillary Income does not include any Assigned
Prepayment Premiums.
Applied Loss Amount: With respect to any Distribution Date, with
respect to the Group 5 Certificates, the excess, if any, of (i) the aggregate
Class Principal Balances of the Group 5 Certificates (other than the related
Notional Amount Certificates), after giving effect to all Realized Losses
with respect to the Mortgage Loans in Loan Group 5 during the Collection
Period for such Distribution Date and payments of principal on such
Distribution Date over (ii) the Aggregate Loan Group Balance for Loan Group 5
for such Distribution Date.
Appraised Value: The appraised value of the Mortgaged Property
based upon the appraisal made for the originator at the time of the
origination of the related Mortgage Loan or the sales price of the Mortgaged
Property at the time of such origination, whichever is less, or (i) with
respect to any Mortgage Loan that represents a refinancing other than a
Streamlined Mortgage Loan, the lower of the appraised value at origination or
the appraised value of the Mortgaged Property based upon the appraisal made
at the time of such refinancing and (ii) with respect to any Streamlined
Mortgage Loan, the appraised value of the Mortgaged Property based upon the
appraisal made in connection with the origination of the mortgage loan being
refinanced.
Assigned Prepayment Premium: Any Prepayment Premium on a Xxxxx
Fargo Serviced Mortgage Loan, any Prepayment Premium on a SPS Serviced
Mortgage Loan and any other Prepayment Premium on deposit in the Certificate
Account.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of September 1, 2005, by and between DLJ
Mortgage Capital, Inc., as assignor, and the Depositor, as assignee, relating
to the Mortgage Loans.
Assignment of Proprietary Lease: With respect to a Cooperative
Loan, the assignment or mortgage of the related Proprietary Lease from the
Mortgagor to the originator of the Cooperative Loan.
Available Distribution Amount: With respect to any Distribution
Date and each of Group 1, Group 2, Group 3, Group 4 and Group 6 the sum of:
(i)...all amounts in respect of Scheduled Payments (net of the related
Expense Fees) due on the related Due Date and received prior to the
related Determination Date on the related Mortgage Loans, together with
any Advances in respect thereof;
(ii) all Insurance Proceeds (to the extent not applied to the restoration of
the Mortgaged Property or released to the Mortgagor in accordance with
the applicable Servicer's Accepted Servicing Standards), all
Liquidation Proceeds received during the calendar month preceding the
month of that Distribution Date on the related Mortgage Loans, in each
case net of unreimbursed Liquidation Expenses incurred with respect to
such Mortgage Loans;
(iii) all Principal Prepayments received during the related Prepayment Period
on the related Mortgage Loans, excluding Prepayment Premiums;
(iv) amounts received with respect to such Distribution Date as the
Substitution Adjustment Amount or Purchase Price in respect of a
Mortgage Loan in the related Loan Group repurchased by the related
Seller, purchased by a Holder of a Subordinate Certificate pursuant to
Section 3.11(f) or purchased by the Special Servicer pursuant to
Section 3.11(g) as of such Distribution Date;
(v) any amounts payable as Compensating Interest Payments by a Servicer
with respect to the related Mortgage Loans on such Distribution Date;
(vi) all Recoveries, if any; and
(vii) the portion of the Mortgage Loan Purchase Price related to such Loan
Group paid in connection with an Optional Termination up to the amount
of the Par Value for such Loan Group;
in the case of clauses (i) through (iv) above reduced by amounts in
reimbursement for Advances previously made and other amounts as to which the
Trustee, the Trust Administrator, a Servicer or the Master Servicer is
entitled to be reimbursed pursuant to Section 3.08 in respect of the related
Mortgage Loans or otherwise.
Back-Up Servicer: Xxxxx Fargo Bank, National Association, acting
in its capacity as back-up servicer for the SPS Serviced Loans hereunder, or
its successors in interest, as applicable.
Bankruptcy Code: The United States Bankruptcy Code, as amended
from time to time (11 U.S.C. §§ 101 et seq.).
Bankruptcy Coverage Termination Date: The point in time at which
the Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Loan Group, Realized Losses
on the Mortgage Loans in that Loan Group incurred as a result of a Deficient
Valuation or Debt Service Reduction.
Bankruptcy Loss Coverage Amount: As of any Determination Date,
the Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Class C-B Certificates since the Cut-off Date and (ii) any
permissible reductions in the Bankruptcy Loss Coverage Amount as evidenced by
a letter of each Rating Agency to the Trust Administrator to the effect that
any such reduction will not result in a downgrading, or otherwise adversely
affect, of the then current ratings assigned to such Classes of Certificates
rated by it.
Basis Risk Shortfall: For any Class of LIBOR Certificates and
any Distribution Date, the sum of (i) the excess, if any, of (a) the related
Current Interest calculated on the basis of the least of (x) the applicable
Certificate Index plus the applicable Certificate Margin, (y) the Maximum
Interest Rate and (z) with respect to the Group 5 LIBOR Certificates, 11.00%,
or with respect to the Group 6 LIBOR Certificates, 10.50%, over (b) the
related Current Interest for the applicable Distribution Date, (ii) any
amount described in clause (i) remaining unpaid from prior Distribution
Dates, and (iii) interest on the amount in clause (ii) for the related
Accrual Period calculated at a per annum rate equal to the least of (x) the
applicable Certificate Index plus the applicable Certificate Margin, (y) the
applicable Maximum Interest Rate and (z) with respect to the Group 5 LIBOR
Certificates, 11.00%, or with respect to the Group 6 LIBOR Certificates,
10.50%.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Book-Entry Form: Any Certificate held through the facilities of
the Depository.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in New York or the state in which
the office of the Master Servicer or any Servicer or the Corporate Trust
Office of the Trustee or Trust Administrator are located are authorized or
obligated by law or executive order to be closed.
Capitalized Interest Account: The separate Eligible Account
designated as such and created and maintained by the Trust Administrator
pursuant to Section 3.05(h) hereof. The Capitalized Interest Account shall
be treated as an "outside reserve fund" under applicable Treasury regulations
and shall not be part of any REMIC. Except as provided in
Section 3.05(h) hereof, any investment earnings on the Capitalized Interest
Account shall be treated as owned by the Depositor and will be taxable to the
Depositor.
Capitalized Interest Deposit: $251,391.42.
Capitalized Interest Distribution: With respect to the
October 2005, November 2005 and December 2005 Distribution Dates, an amount
equal to 30 days of interest (based on a 360-day year) on the aggregate
amount on deposit in the Prefunding Account at the end of the related
Collection Period accruing at a per annum rate equal to the weighted average
of the Net Mortgage Rates of the Mortgage Loans in Loan Group 5 as of the
first day of the related Collection Period. If REMIC II is unable to pay the
REMIC II Interests in respect of Loan Group 5 their stated pass-through rates
due to an insufficiency in the Capitalized Interest Distribution, the
Depositor will contribute any amounts to REMIC II necessary to pay the
REMIC II Interests their stated pass-through rates.
Capitalized Interest Release Amount: With respect to each of the
October 2005, November 2005 and December 2005 Distribution Dates, an amount
equal to the excess of (a) the amount remaining on deposit in the Capitalized
Interest Account on such Distribution after distribution of the Capitalized
Interest Distribution for such Distribution Date, over (b) the Capitalized
Interest Requirement for such Distribution Date.
Capitalized Interest Requirement: With respect to the
October 2005 Distribution Date, an amount equal to 60 days of interest (based
on a 360-day year) accruing at the Capitalized Interest Requirement Rate for
such Distribution Date on the aggregate amount on deposit in the Prefunding
Account at the end of the related Collection Period and with respect to the
November 2005 Distribution Date, an amount equal to 30 days of interest
(based on a 360-day year) accruing at the Capitalized Interest Requirement
Rate for such Distribution Date on the aggregate amount on deposit in the
Prefunding Account at the end of the related Collection Period. With respect
to the December 2005 Distribution Date and any Distribution Date thereafter,
zero.
Capitalized Interest Requirement Rate: With respect to the
October 2005 and November 2005 Distribution Dates, a per annum rate equal to
the sum of (i) the Certificate Index for such Distribution Date, (ii) the
weighted average of the Certificate Margins of the Group 5 Certificates for
such Distribution Date (weighted with respect to the Group 5 Subordinate
Certificates based on the related portion of the Group 5 Subordinate
Balance), (iii) the weighted average of the Expense Fee Rates of the Mortgage
Loans in Loan Group 5 for such Distribution Date and (iv) with respect to the
October 2005 Distribution Date, 0.35% and with respect to the November 2005
Distribution Date, 0.70%.
Carryforward Interest: For any Class of LIBOR Certificates and
any Distribution Date, the sum of (1) the amount, if any, by which (x) the
sum of (A) Current Interest for such Class for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest for such
Class from previous Distribution Dates exceeds (y) the amount paid in respect
of interest on such Class on such immediately preceding Distribution Date,
and (2) interest on such amount for the related Accrual Period at the
applicable Pass-Through Rate.
Cash Remittance Date: With respect to any Distribution Date and
(A) SPS, the 7th calendar day preceding such Distribution Date, or if such
7th calendar day is not a Business Day, the Business Day immediately
preceding such 7th calendar day and (B) Xxxxx Fargo, WMB and the Designated
Servicers, the 18th calendar day of the month in which the Distribution Date
occurs, or if such 18th calendar day is not a Business Day, the Business Day
immediately following such 18th calendar day.
Certificate: Any Certificates executed and authenticated by the
Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits A
through F hereto.
Certificate Account: The separate Eligible Account created and
maintained with the Trust Administrator, or any other bank or trust company
acceptable to the Rating Agencies which is incorporated under the laws of the
United States or any state thereof pursuant to Section 3.05, which account
shall bear a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trust Administrator, as agent for
the Trustee, on behalf of the Certificateholders or any other account serving
a similar function acceptable to the Rating Agencies. Funds in the
Certificate Account may (i) be held uninvested without liability for interest
or compensation thereon or (ii) be invested at the direction of the Trust
Administrator in Eligible Investments and reinvestment earnings thereon (net
of investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts permitted to
be withdrawn pursuant to Section 3.08(b)) shall be held in trust for the
Certificateholders.
Certificate Balance: With respect to any Certificate at any
date, the maximum dollar amount of principal to which the Holder thereof is
then entitled hereunder, such amount being equal to the Denomination thereof
(i) minus all distributions of principal and allocations of Realized Losses,
including Excess Losses or Applied Loss Amounts, as applicable, previously
made or allocated with respect thereto and, in the case of the Class 5-A-2
Certificates and any Subordinate Certificates, reduced by any such amounts
allocated to such Class on prior Distribution Dates pursuant to Section 4.02
and (ii) plus the amount of any increase to the Certificate Balance of such
Certificate pursuant to Section 4.03.
With respect to each Class 5-X Certificate, on any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate multiplied by an amount equal to (i) the excess, if any, of (A)
the Aggregate Loan Group Balance for Loan Group 5 as of such date of
determination, over (B) the then aggregate Class Principal Balance of the
Group 5 Senior Certificates and Class M Certificates then outstanding, which
represents the sum of (i) the initial principal balance of the REMIC IV
Regular Interest 5-X-PO, as reduced by Realized Losses allocated thereto and
payments deemed made thereon, and (ii) accrued and unpaid interest on the
REMIC IV Regular Interest 5-X-IO, as reduced by Realized Losses allocated
thereto.
Certificate Group: Any of Certificate Group 1, Certificate
Group 2, Certificate Group 3, Certificate Group 4, Certificate Group 5 or
Certificate Group 6, as applicable.
Certificate Group 1: Any of the Certificates with a
Class designation beginning with "1" and relating to Loan Group 1.
Certificate Group 2: Any of the Certificates with a
Class designation beginning with "2" and relating to Loan Group 2.
Certificate Group 3: Any of the Certificates with a
Class designation beginning with "3" and relating to Loan Group 3.
Certificate Group 4: Any of the Certificates with a
Class designation beginning with "4" and relating to Loan Group 4.
Certificate Group 5: Any of the Certificates with a
Class designation beginning with "5" and relating to Loan Group 5.
Certificate Group 6: Any of the Certificates with a
Class designation beginning with "6" and relating to Loan Group 6.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register.
Certificate Index: With respect to each Distribution Date and the
LIBOR Certificates, the rate for one month United States dollar deposits
quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the related
Interest Determination Date relating to each Class of LIBOR Certificates. 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 Trust Administrator after consultation with
DLJMC), the rate will be the related Reference Bank Rate. If no such
quotations can be obtained and no related Reference Bank Rate is available,
the Certificate Index with respect to the LIBOR Certificates will be the
Certificate Index applicable to such Certificates on the preceding
Distribution Date.
On the Interest Determination Date immediately preceding each
Distribution Date, the Trust Administrator shall determine each Certificate
Index for the Accrual Period commencing on such Distribution Date and inform
the Master Servicer and each Servicer of such rate.
Certificate Margin: As to each Class of LIBOR Certificates, the
applicable amount set forth below:
Certificate Margin
Class (1) (2)
5-A-1 0.260% 0.520%
5-A-2 0.320% 0.640%
6-A-1 0.270% 0.540%
6-A-2-1 0.250% 0.500%
6-A-2-2 0.320% 0.640%
5-M-1 0.480% 0.980%
5-M-2 0.670% 1.170%
5-M-3 1.300% 1.800%
5-M-4 1.900% 2.400%
5-M-5 2.200% 2.700%
6-B-1 0.500% 1.000%
6-B-2 0.650% 1.150%
6-B-3 1.250% 1.750%
___________
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(1) On and prior to the first Distribution Date on which
the related Optional Termination may occur.
(2) After the first Distribution Date on which the related
Optional Termination may occur.
Certificate Register: The register maintained pursuant to
Section 6.02(a) hereof.
Class: All Certificates bearing the same class designation as
set forth in the Preliminary Statement.
Class 5-M-1 Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balance of the Group 5
Senior Certificates, after giving effect to payments on such Distribution
Date and (ii) the Class Principal Balance of the Class 5-M-1 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 88.90% and (ii) the Aggregate Loan Group Balance for Loan
Group 5 for such Distribution Date and (B) the amount, if any, by which
(i) the Aggregate Loan Group Balance for Loan Group 5 for such Distribution
Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance for Loan Group 5
as of the Initial Cut-off Date.
Class 5-M-2 Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balance of the Group 5
Senior Certificates and Class 5-M-1 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class 5-M-2 Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 93.30% and
(ii) the Aggregate Loan Group Balance for Loan Group 5 for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance for Loan Group 5 as of the Initial Cut-off Date.
Class 5-M-3 Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balance of the Group 5
Senior Certificates, Class 5-M-1 and Class 5-M-2 Certificates, in each case,
after giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class 5-M-3 Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 96.30% and
(ii) the Aggregate Loan Group Balance for Loan Group 5 for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance for Loan Group 5 as of the Initial Cut-off Date.
Class 5-M-4 Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balance of the Group 5
Senior Certificates, Class 5-M-1, Class 5-M-2 and Class 5-M-3 Certificates,
in each case, after giving effect to payments on such Distribution Date and
(ii) the Class Principal Balance of the Class 5-M-4 Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 97.30% and (ii) the Aggregate Loan Group Balance for Loan Group 5 for
such Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Loan Group Balance for Loan Group 5 for such Distribution Date exceeds
(ii) 0.50% of the Aggregate Loan Group Balance for Loan Group 5 as of the
Initial Cut-off Date.
Class 5-M-5 Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balance of the Group 5
Senior Certificates, Class 5-M-1, Class 5-M-2, Class 5-M-3 and Class 5-M-4
Certificates, in each case, after giving effect to payments on such
Distribution Date and (ii) the Class Principal Balance of the Class 5-M-5
Certificates immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the product of (i) 98.30% and (ii) the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date and (B) the amount, if
any, by which (i) the Aggregate Loan Group Balance for Loan Group 5 for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance for
Loan Group 5 as of the Initial Cut-off Date.
Class 5-X Distributable Amount: With respect to any Distribution
Date and the Class 5-X Certificates, to the extent of any Monthly Excess
Cashflow remaining on such Distribution Date after the distribution of
amounts pursuant to Section 4.01(II)(d)(i)-(xi), the sum of (a) the amount of
interest accrued during the related Accrual Period on the Class 5-X
Certificates (as described in the Preliminary Statement) and (b) the
Overcollateralization Release Amount, if any, for such Distribution Date.
Class 5-X Notional Amount: With respect to the Class 5-X
Certificates or REMIC IV Regular Interest 5-X-IO and any Distribution Date,
the aggregate of the Uncertificated Principal Balances of the REMIC II
Regular Interests LT1, LT2, LT3 and LT4 immediately prior to such
Distribution Date, (which for clarification is equal to the Aggregate Loan
Group Balance for Loan Group 5 as of the first day of the related Collection
Period (excluding any such Mortgage Loans that were subject to a Payoff, the
principal of which was distributed on the Distribution Date preceding the
current Distribution Date)).
Class 6-B Certificates: As specified in the Preliminary
Statement.
Class 6-B Credit Support Depletion Date: The first Distribution
Date on which the aggregate Class Principal Balance of the Class 6-B
Certificates has been or will be reduced to zero.
Class 6-B Percentage: With respect to any Distribution Date, the
aggregate Class Principal Balance of the Class 6-B Certificates immediately
prior to such Distribution Date divided by the Aggregate Loan Group Balance
for Loan Group 6 as of the first day of the related Collection Period
(excluding any such Mortgage Loans that were subject to a Payoff, the
principal of which was distributed on the Distribution Date preceding the
current Distribution Date).
Class 6-X Distribution Amount: For any Distribution Date, an
amount equal to the sum of the Component 6-X-A Distribution Amount for such
Distribution Date and the Component 6-X-B Distribution Amount for such
Distribution Date.
Class 6-X Notional Amount: For any Distribution Date, the
aggregate Class Principal Balance of the Group 6 LIBOR Certificates
immediately prior to that Distribution Date. The Class 6-X Notional Amount
as of the Closing Date is $237,730,000.
Class 6-X Pass-Through Rate: For any Distribution Date and the
Class 6-X Certificates, will be a per annum rate equal to a fraction,
expressed as a percentage, the numerator of which is the product of (1) the
Class 6-X Distribution Amount for such Distribution Date and (2) 12, and the
denominator of which is the Class 6-X Notional Amount for such Distribution
Date.
Class A Certificates: As specified in the Preliminary Statement.
Class B Certificates: As specified in the Preliminary Statement.
Class C-B Certificates: As specified in the Preliminary
Statement.
Class C-B Credit Support Depletion Date: The first Distribution
Date on which the aggregate Class Principal Balance of the Class C-B
Certificates has been or will be reduced to zero.
Class C-B Percentage: With respect to any Distribution Date, the
aggregate Class Principal Balance of the Class C-B Certificates immediately
prior to such Distribution Date divided by the Aggregate Groups 1-4
Collateral Balance as of the first day of the related Collection Period
(excluding any such Mortgage Loans that were subject to a Payoff, the
principal of which was distributed on the Distribution Date preceding the
current Distribution Date).
Class Interest Shortfall: With respect to any Distribution Date
and Class of Group 1, Group 2, Group 3, Group 4, Group 6 and Class C-B
Certificates, the amount by which the amount described in clause (i) of the
definition of Interest Distribution Amount for such Class, exceeds the amount
of interest actually distributed on such Class on such Distribution Date.
Class M Certificates: The Class 5-M-1, Class 5-M-2, Class 5-M-3,
Class 5-M-4 and Class 5-M-5 Certificates.
Class Notional Amount: The Class 5-X Notional Amount or the
Class 6-X Notional Amount, as applicable.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Unpaid Interest Amounts: With respect to any Distribution
Date and Class of interest bearing Group 1, Group 2, Group 3, Group 4,
Group 6 and Class C-B Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates exceeds
the amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Interest Distribution Amount.
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 A.
Class Y Regular Interests: The Class Y-1, Class Y-2, Class Y-3
and Class Y-4 Regular Interests.
Class Y-1 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the Class Y-1 Principal Reduction Amount for
such Distribution Date over the principal portion of Realized Losses
allocated to the Class Y-1 Regular Interest on such Distribution Date.
Class Y-1 Principal Reduction Amount: The Class Y Principal
Reduction Amount for the Class Y-1 Regular Interest as determined pursuant to
the provisions of the Appendix A.
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 A.
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 A.
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 A.
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 1 Loans, the "related Group" for the
Class Z-2 Regular Interest is the Group 2 Loans, the "related Group" for the
Class Z-3 Regular Interest is the Group 3 Loans and the "related Group" for
the Class Z-4 Regular Interest is the Group 4 Loans) exclusive of any
Recoveries included therein over the amounts thereof distributable (i) in
respect of interest on such Class Z Regular Interest and the related Class Y
Regular Interest and (ii) in the case of the Group 1 Loans, to the Class AR-L
Certificates and (y) the amount of Realized Losses allocable to principal for
the related Group over (B) the Class Y Principal Reduction Amount for the
related Group.
Class Z Regular Interests: The Class Z-1, Class Z-2, Class Z-3
and Class Z-4 Regular Interests.
Class Z-1 Principal Distribution Amount: For any Distribution
Date, the excess, if any, of the Class Z-1 Principal Reduction Amount for
such Distribution Date over the principal portion of Realized Losses
allocated to the Class Z-1 Regular Interest on such Distribution Date.
Class Z-1 Principal Reduction Amount: The Class Z Principal
Reduction Amount for the Class Z-1 Regular Interest as determined pursuant to
the provisions of the Appendix A.
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 A.
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 A.
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 A.
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.
Clearing Agency: An organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, which initially shall be DTC, the nominee of which is Cede & Co., as
the registered Holder of the Book Entry Certificates. The Clearing Agency
shall at all times be a "clearing corporation" as defined in Section 8
102(a)(5) of the Uniform Commercial Code of the State of New York.
Closing Date: September 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained by a
Servicer in accordance with Section 3.05.
Collection Period: With respect to each Distribution Date, the
period commencing on the second day of the month preceding the month of the
Distribution Date and ending on the first day of the month of the
Distribution Date.
Commencement of Foreclosure: The first official action required
under local law to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including: (i) in the case of a
mortgage, any filing or service of process necessary to commence an action to
foreclose; or (ii) in the case of a deed of trust, the posting, publishing,
filing or delivery of a notice of sale.
Compensating Interest Payment: For any Distribution Date and the
WMB Serviced Mortgage Loans, the lesser of (i) the aggregate Servicing Fee
payable to WMB in respect of the WMB Serviced Mortgage Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall
allocable to Payoffs and Curtailments with respect to the WMB Serviced
Mortgage Loans.
For any Distribution Date and the SPS Serviced Mortgage Loans,
the lesser of (i) the aggregate Servicing Fee payable to SPS in respect of
the SPS Serviced Mortgage Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall allocable to Payoffs and Curtailments
with respect to the SPS Serviced Mortgage Loans.
For any Distribution Date and the Xxxxx Fargo Serviced Mortgage
Loans, the lesser of (i) the aggregate Servicing Fee payable to Xxxxx Fargo
in respect of the Xxxxx Fargo Serviced Mortgage Loans for such Distribution
Date and (ii) the aggregate Prepayment Interest Shortfall allocable to
Payoffs and Curtailments with respect to the Xxxxx Fargo Serviced Mortgage
Loans.
For any Distribution Date and the Master Servicer, the
Compensating Interest Payment shall be equal to:
(a) with respect to the WMB Serviced Mortgage Loans, the excess of (i) the
Compensating Interest Payment required to be remitted by WMB for such
Distribution Date over (ii) the Compensating Interest Payment actually
remitted by WMB for such Distribution Date;
(b) with respect to the SPS Serviced Mortgage Loans, the excess of (i) the
Compensating Interest Payment required to be remitted by SPS for such
Distribution Date over (ii) the Compensating Interest Payment actually
remitted by SPS for such Distribution Date;
(c) with respect to the Xxxxx Fargo Serviced Mortgage Loans, the excess of
(i) the Compensating Interest Payment required to be remitted by Xxxxx
Fargo for such Distribution Date over (ii) the Compensating Interest
Payment actually remitted by Xxxxx Fargo for such Distribution Date;
(d) with respect to the PHH Mortgage Serviced Mortgage Loans, the excess of
(i) the Compensating Interest (as defined in the PHH Mortgage
Underlying Servicing Agreement) required to be remitted by PHH Mortgage
on the Remittance Date (as defined in the PHH Mortgage Underlying
Servicing Agreement) in the month of such Distribution Date over
(ii) the Compensating Interest (as defined in the PHH Mortgage
Underlying Servicing Agreement) actually remitted by PHH Mortgage on
the Remittance Date (as defined in the PHH Mortgage Underlying
Servicing Agreement) in the month of such Distribution Date;
(e) with respect to the National City Serviced Mortgage Loans, the excess
of (i) the Compensating Interest (as defined in the National City
Underlying Servicing Agreement) required to be remitted by National
City on the Remittance Date (as defined in the National City Underlying
Servicing Agreement) in the month of such Distribution Date over
(ii) the Compensating Interest (as defined in the National City
Underlying Servicing Agreement) actually remitted by National City on
the Remittance Date (as defined in the National City Underlying
Servicing Agreement) in the month of such Distribution Date;
(f) with respect to the IndyMac Serviced Mortgage Loans, the excess of
(i) the Compensating Interest (as defined in the IndyMac Underlying
Servicing Agreement) required to be remitted by IndyMac on the
Remittance Date (as defined in the IndyMac Underlying Servicing
Agreement) in the month of such Distribution Date over (ii) the
Compensating Interest (as defined in the IndyMac Underlying Servicing
Agreement) actually remitted by IndyMac on the Remittance Date (as
defined in the IndyMac Underlying Servicing Agreement) in the month of
such Distribution Date;
(g) with respect to the GMAC Mortgage Serviced Mortgage Loans, the excess
of (i) the Compensating Interest (as defined in the GMAC Mortgage
Underlying Servicing Agreement) required to be remitted by GMAC
Mortgage on the Remittance Date (as defined in the GMAC Mortgage
Underlying Servicing Agreement) in the month of such Distribution Date
over (ii) the Compensating Interest (as defined in the GMAC Mortgage
Underlying Servicing Agreement) actually remitted by GMAC Mortgage on
the Remittance Date (as defined in the GMAC Mortgage Underlying
Servicing Agreement) in the month of such Distribution Date;
(h) with respect to the Countrywide Serviced Mortgage Loans, the excess of
(i) the Compensating Interest (as defined in the Countrywide Servicing
Agreement) required to be remitted by Countrywide on the Remittance
Date (as defined in the Countrywide Servicing Agreement) in the month
of such Distribution Date over (ii) the amount of Compensating Interest
(as defined in the Countrywide Servicing Agreement) actually remitted
by Countrywide on the Remittance Date (as defined in the Countrywide
Servicing Agreement) in the month of such Distribution Date; and
(i) with respect to the EverBank Serviced Mortgage Loans, the excess of (i)
the Compensating Interest (as defined in the EverBank Servicing
Agreement) required to be remitted by EverBank on the Remittance Date
(as defined in the EverBank Servicing Agreement) in the month of such
Distribution Date over (ii) the amount of Compensating Interest (as
defined in the EverBank Servicing Agreement) actually remitted by
EverBank on the Remittance Date (as defined in the EverBank Servicing
Agreement) in the month of such Distribution Date.
Component 6-X-A Distribution Amount: For any Distribution Date,
an amount equal to interest that would accrue at the Component 6-X-A
Pass-Through Rate on the Component 6-X-A Notional Amount for a period equal
to the Accrual Period for the Class 6-A Certificates for such Distribution
Date.
Component 6-X-A Notional Amount: For any Distribution Date, an
amount equal to the aggregate Class Principal Balance of the Class 6-A
Certificates immediately prior to that Distribution Date.
Component 6-X-A Pass-Through Rate: For any Distribution Date, a
per annum rate equal to the excess, if any, of the Group 6 Net WAC Rate for
that Distribution Date, over the weighted average of the Pass-Through Rates
of the Class 6-A Certificates for that Distribution Date.
Component 6-X-B Distribution Amount: For any Distribution Date,
an amount equal to interest that would accrue at the Component 6-X-B
Pass-Through Rate on the Component 6-X-B Notional Amount for a period equal
to the Accrual Period for the Class 6-B-1, Class 6-B-2 and Class 6-B-3
Certificates for such Distribution Date.
Component 6-X-B Notional Amount: For any Distribution Date, an
amount equal to the aggregate Class Principal Balance of the Class 6-B-1,
Class 6-B-2 and Class 6-B-3 Certificates immediately prior to that
Distribution Date.
Component 6-X-B Pass-Through Rate: For any Distribution Date, a
per annum rate equal to the excess, if any, of the Group 6 Net WAC Rate for
that Distribution Date, over the weighted average of the Pass-Through Rates
of the Class 6-B-1, Class 6-B-2 and Class 6-B-3 Certificates for that
Distribution Date.
Cooperative Corporation: With respect to any Cooperative Loan,
the cooperative apartment corporation that holds legal title to the related
Cooperative Property and grants occupancy rights to units therein to
stockholders through Proprietary Leases or similar arrangements.
Cooperative Lien Search: A search for (a) federal tax liens,
mechanics' liens, lis pendens, judgments of record or otherwise against
(i) the Cooperative Corporation and (ii) the seller of the Cooperative Unit,
(b) filings of Financing Statements and (c) the deed of the Cooperative
Property into the Cooperative Corporation.
Cooperative Loan: A Mortgage Loan that is secured by a first lien
on and a perfected security interest in Cooperative Shares and the related
Proprietary Lease granting exclusive rights to occupy the related Cooperative
Unit in the building owned by the related Cooperative Corporation.
Cooperative Property: With respect to any Cooperative Loan, all
real property and improvements thereto and rights therein and thereto owned
by a Cooperative Corporation including without limitation the land, separate
dwelling units and all common elements.
Cooperative Shares: With respect to any Cooperative Loan, the
shares of stock issued by a Cooperative Corporation and allocated to a
Cooperative Unit and represented by stock certificates.
Cooperative Unit: With respect to any Cooperative Loan, a
specific unit in a Cooperative Property.
Corporate Trust Office: With respect to the Trustee, the
designated office of the Trustee at which at any particular time its
corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement is
located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust-Structured Finance. With respect to the Trust Administrator,
the designated office of the Trust Administrator at which at any particular
time its corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: CSFB ARMT
2005-10, except for purposes of Section 6.06 and certificate transfer
purposes, such term shall mean the office or agency of the Trust
Administrator located at Xxxxx Fargo Bank, N.A., 0xx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: CSFB ARMT 2005-10.
Countrywide: Countrywide Home Loans Servicing LP, and its
successors and assigns.
Countrywide Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which Countrywide is
the applicable Designated Servicer.
Countrywide Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
Countrywide and the Master Servicer, and acknowledged by the Trustee and the
Trust Administrator.
Countrywide Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the Countrywide Reconstituted Servicing Agreement.
Current Interest: For any Class of Group 5 Certificates, other
than the Class 5-X Certificates, and Distribution Date, the amount of
interest accruing at the applicable Pass-Through Rate on the related Class
Principal Balance of such Class during the related Accrual Period; provided,
that as to each Class of Group 5 Certificates the Current Interest shall be
reduced by a pro rata portion of any Interest Shortfalls to the extent not
covered by Monthly Excess Interest.
Curtailment: Any payment of principal on a Mortgage Loan, made
by or on behalf of the related Mortgagor, other than a Scheduled Payment, a
prepaid Scheduled Payment or a Payoff, which is applied to reduce the
outstanding Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: An agreement, dated as of the date hereof,
among a custodian, the Trustee and the Trust Administrator, pursuant to which
such custodian agrees to hold any of the documents or instruments referred to
in Section 2.01 of this Agreement as agent for the Trustee. As of the date
hereof, the Custodians shall act pursuant to the LaSalle Custodial Agreement
and the Xxxxx Fargo Custodial Agreement, as applicable.
Custodian: A custodian which is appointed pursuant to a
Custodial Agreement. Any Custodian so appointed shall act as agent on behalf
of the Trustee, and shall be compensated by the Trust Administrator or as
otherwise specified therein. Initially, LaSalle shall serve as Custodian for
the Mortgage Loans described in the LaSalle Custodial Agreement and Xxxxx
Fargo shall serve as Custodian for the Mortgage Loans described in the Xxxxx
Fargo Custodial Agreement.
Cut-off Date: For any Initial Mortgage Loan, the Initial Cut-off
Date. For any Subsequent Mortgage Loan, the applicable Subsequent Cut-off
Date.
Cut-off Date Principal Balance: With respect to any Mortgage
Loan, the Stated Principal Balance thereof as of the close of business on the
Cut-off Date.
Data Remittance Date: With respect to any Distribution Date, the
10th calendar day of the month in which such Distribution Date occurs, or if
such 10th day is not a Business Day, the Business Day immediately following
such 10th day .
DBRS: Dominion Bond Rating Service, Inc. or any successor
thereto.
Debt Service Reduction: With respect to a Mortgage Loan in Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of
principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan in Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6, a
valuation by a court of competent jurisdiction of the Mortgaged Property in
an amount less than the then outstanding indebtedness under the Mortgage
Loan, or that results in a permanent forgiveness of principal, which
valuation in either case results from a proceeding under the Bankruptcy Code.
Deferred Amount: For any Class of Group 5 Subordinate
Certificates (other than the Class 5-X Certificates) and Class 5-A-2
Certificates and Distribution Date, will equal the amount by which (x) the
aggregate of the Applied Loss Amounts previously applied in reduction of the
Class Principal Balance thereof exceeds (y) the sum of (i) the aggregate of
amounts previously paid in reimbursement thereof and (ii) amounts added to
the Class Principal Balances thereof pursuant to Section 4.03(a)(ii) on all
prior Distribution Dates, including such Distribution Date.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
outstanding principal balance of all Mortgage Loans in Loan Group 5 60 or
more days delinquent (including all foreclosures and REO Properties) as of
the close of business on the last day of such month, and the denominator of
which is the Aggregate Loan Group Balance for Loan Group 5 as of the close of
business on the last day of such month.
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither of the foregoing, the percentage interest appearing on the face
thereof.
Deposit Amount: As defined in Section 4.10(e) or
Section 4.11(e) herein, as applicable.
Depositor: Credit Suisse First Boston Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of
the Closing Date by and among DTC, the Depositor and the Trust Administrator
for the benefit of the Trustee.
Designated Mortgage Loans: The PHH Mortgage Serviced Mortgage
Loans, unless any such Mortgage Loan is no longer serviced by PHH Mortgage
under the PHH Mortgage Reconstituted Servicing Agreement, the National City
Serviced Mortgage Loans, unless any such Mortgage Loan is no longer serviced
by National City under the National City Reconstituted Servicing Agreement,
the IndyMac Serviced Mortgage Loans, unless any such Mortgage Loan is no
longer serviced by IndyMac under the IndyMac Reconstituted Servicing
Agreement, the GMAC Mortgage Serviced Mortgage Loans, unless any such
Mortgage Loan is no longer serviced by GMAC Mortgage under the GMAC Mortgage
Reconstituted Servicing Agreement, the Countrywide Serviced Mortgage Loans,
unless any such Mortgage Loan is no longer serviced by Countrywide under the
Countrywide Servicing Agreement and the EverBank Serviced Mortgage Loans,
unless any such Mortgage Loan is no longer serviced by EverBank under the
EverBank Servicing Agreement.
Designated Servicer: Each of PHH Mortgage, National City,
IndyMac, GMAC Mortgage, Countrywide and EverBank.
Designated Servicing Agreements: Each of the PHH Mortgage
Reconstituted Servicing Agreement, National City Reconstituted Servicing
Agreement, IndyMac Reconstituted Servicing Agreement, GMAC Mortgage
Reconstituted Servicing Agreement, Countrywide Reconstituted Servicing
Agreement and EverBank Reconstituted Servicing Agreement.
Determination Date: With respect to each Distribution Date and
(i) each Servicer (other than Xxxxx Fargo), the 10th day of the calendar
month in which such Distribution Date occurs or, if such 10th day is not a
Business Day, the Business Day immediately succeeding such Business Day and
(ii) Xxxxx Fargo, the Business Day immediately preceding the related Cash
Remittance Date.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes 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 FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a 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, (v) an "electing large
partnership" within the meaning of Section 775 of the Code, and (vi) any
other Person so designated by the Trust Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Class AR or
Class AR-L Certificate by such Person may cause the REMIC or any Person
having an Ownership Interest in any Class of Certificates (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 Class AR or Class AR-L 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 Date: The 25th day of any month, or if such 25th
day is not a Business Day, the Business Day immediately following such 25th
day, commencing in October 2005.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and
its successors and assigns.
DLJMC Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which DLJMC is the applicable Seller.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due
which is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the
first day of the month, the date in the calendar month immediately preceding
the Distribution Date on which such Scheduled Payments are due, exclusive of
any days of grace.
Eligible Account: Either (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of
a holding company, the commercial paper or other short term debt obligations
of such holding company) have been rated by each Rating Agency in its highest
short term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee, the
Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Trustee, the Trust Administrator and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest short
term debt rating, and one of the two highest long term debt ratings of the
Rating Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below:
1. direct obligations of, and obligations 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; or obligations fully
guaranteed by, the United States of America; the FHLMC, FNMA, the
Federal Home Loan Banks or any agency or instrumentality of the United
States of America rated AA (or the equivalent) or higher by the Rating
Agencies;
2. federal funds, demand and time deposits in, certificates of deposits
of, or bankers' acceptances issued by, any depository institution or
trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, so long as at
the time of such investment or contractual commitment providing for
such investment the commercial paper or other short term debt
obligations of such depository institution or trust company (or, in the
case of a depository institution or trust company which is the
principal subsidiary of a holding company, the commercial paper or
other short term debt obligations of such holding company) are rated in
one of two of the highest ratings by each of the Rating Agencies, and
the long term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the long term
debt obligations of such holding company) are rated in one of two of
the highest ratings, by each of the Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with respect
to any security described in clause (i) above and entered into with a
depository institution or trust company (acting as a principal) in the
highest rated category by the Rating Agencies; provided, however, that
collateral transferred pursuant to such repurchase obligation must be
of the type described in clause (i) above and must (A) be valued daily
at current market price plus accrued interest, (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred by
the Trustee or the Trust Administrator in exchange for such collateral,
and (C) be delivered to the Trustee or the Trust Administrator or, if
the Trustee or the Trust Administrator, as applicable, is supplying the
collateral, an agent for the Trustee or the Trust Administrator, in
such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof which has a long term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
5. commercial paper having an original maturity of less than 365 days and
issued by an institution having a short term unsecured debt rating in
the highest available rating category of each of the Rating Agencies at
the time of such investment;
6. a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation having
a long term unsecured debt rating in the highest available rating
category of each of the Rating Agencies at the time of such investment;
7. money market funds (which may be 12b-1 funds as contemplated under the
rules promulgated by the Securities and Exchange Commission under the
Investment Company Act of 1940) having ratings in the highest available
rating category of Moody's and rated "AAAm" or "AAAm-G" by S&P at the
time of such investment (any such money market funds which provide for
demand withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including money
market funds of the Master Servicer, a Servicer, the Trustee or the
Trust Administrator and any such funds that are managed by the Master
Servicer, a Servicer, the Trustee or the Trust Administrator or their
respective Affiliates or for the Master Servicer, a Servicer, the
Trustee or the Trust Administrator or any Affiliate of such Person acts
as advisor, as long as such money market funds satisfy the criteria of
this subparagraph 7; and
8. such other investments the investment in which will not, as evidenced
by a letter from each of the Rating Agencies, result in the downgrading
or withdrawal of the Ratings of the Certificates;
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive
only interest payments with respect to the obligations underlying such
instrument, or (ii) both principal and interest payments derived from
obligations underlying such instrument and the principal and interest
payments with respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such underlying
obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements (without regard
to the ratings requirements) of an Underwriter's Exemption.
ERISA Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and
hazard insurance premiums, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or
any other related document.
Event of Default: As defined in Section 8.01 hereof.
EverBank: EverBank and its successors and assigns.
EverBank Serviced Mortgage Loans: The Mortgage Loans identified
as such on the Mortgage Loan Schedule, for which EverBank is the applicable
Designated Servicer.
EverBank Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
EverBank and the Master Servicer, and acknowledged by the Trustee and the
Trust Administrator.
EverBank Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the EverBank Reconstituted Servicing Agreement.
Excess Loss: The amount of any (i) Fraud Loss in excess of the
related Fraud Loss Coverage Amount on a Mortgage Loan in Loan Group 1, Loan
Group 2, Loan Group 3 or Loan Group 4 or Loan Group 6, as applicable,
realized after the related Fraud Loss Coverage Termination Date, (ii) Special
Hazard Loss in excess of the related Special Hazard Loss Coverage Amount on a
Mortgage Loan in Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group 4 or
Loan Group 6, as applicable, realized after the related Special Hazard
Coverage Termination Date or (iii) Bankruptcy Loss in excess of the related
Bankruptcy Loss Coverage Amount on a Mortgage Loan in Loan Group 1, Loan
Group 2, Loan Group 3 or Loan Group 4 or Loan Group 6, as applicable,
realized after the Bankruptcy Coverage Termination Date.
Expense Fee Rate: As to each Mortgage Loan, the sum of the
related Servicing Fee Rate, the Trust Administrator Fee Rate, if applicable,
and the rate at which the premium on a Lender Paid Mortgage Guaranty
Insurance Policy is calculated, if applicable.
Expense Fees: As to each Mortgage Loan and Distribution Date,
the sum of the related Servicing Fee, the Trust Administrator Fee, if
applicable, and any premium on any Lender Paid Mortgage Guaranty Insurance
Policy, if applicable.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Financing Statement: A financing statement, as applicable, filed
pursuant to the Uniform Commercial Code to perfect a security interest in the
Cooperative Shares and Pledge Instruments.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group 1, Loan
Group 2, Loan Group 3, Loan Group 4 or Loan Group 6 as to which a Fraud Loss
has occurred.
Fraud Loss Coverage Amount: With respect to each of Loan Groups
1-4 and Loan Group 6, the aggregate amount of Fraud Losses that are allocated
solely to the related Class B Certificates, as of the Closing Date,
$7,086,160 with respect to Loan Groups 1-4 and $2,407,396, subject to
reduction from time to time by the amount of Fraud Losses allocated to the
related Class B Certificates. In addition, (a) on each anniversary prior to
the fifth anniversary of the Cut-off Date, each Fraud Loss Coverage Amount
will be reduced to an amount equal to the lesser of (A) with respect to Loan
Groups 1-4, 1.00% of the Aggregate Groups 1-4 Collateral Balance as of such
date, and with respect to Loan Group 6, 1.00% of the Aggregate Loan Group
Balance for Loan Group 6 as of such date, and (B) the excess of the related
Fraud Loss Coverage Amount as of the preceding anniversary of the Cut-off
Date over the cumulative amount of Fraud Losses on the Mortgage Loans in the
related Loan Group(s) allocated to the related Class B Certificates since
such preceding anniversary or the Cut-off Date, and (b) on the fifth
anniversary of the Cut-off Date, zero. Each Fraud Loss Coverage Amount may
be reduced below the amount set forth above for any Distribution Date with
the consent of the Rating Agencies as evidenced by a letter of each Rating
Agency to the Trust Administrator to the effect that any such reduction will
not result in a downgrading of the current ratings assigned to the related
Classes of Certificates rated by it.
Fraud Loss Coverage Termination Date: With respect to each of
Loan Groups 1-4 and Loan Group 6, the point in time at which the applicable
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Liquidated Mortgage Loans
in Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4 and Loan Group 6 as
to which a loss is sustained by reason of a default arising from fraud,
dishonesty or misrepresentation in connection with the related Mortgage Loan,
including a loss by reason of the denial of coverage under any related
Mortgage Guaranty Insurance Policy because of such fraud, dishonesty or
misrepresentation.
GMAC Mortgage: GMAC Mortgage Corporation, and its successors and
assigns.
GMAC Mortgage Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which GMAC Mortgage is
the applicable Servicer.
GMAC Mortgage Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
GMAC Mortgage, the Master Servicer and the Trust Administrator, and
acknowledged by the Trustee.
GMAC Mortgage Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the GMAC Mortgage Reconstituted Servicing Agreement.
Gross Margin: With respect to any Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note and the Mortgage
Loan Schedule that is added to the Index on each Adjustment Date in
accordance with the terms of the related Mortgage Note to determine the new
Mortgage Rate for such Mortgage Loan.
Group: When used with respect to the Mortgage Loans, any of Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4, Loan Group 5 or Loan
Group 6, or with respect to the Certificates, the Class or Classes of
Certificates that relate to the corresponding Group or Groups.
Group 1: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 1 or with respect to the Certificates, the
Group 1 Certificates (as specified in the Preliminary Statement).
Group 1 Senior Liquidation Amount: With respect to any
Distribution Date, the aggregate, for each Mortgage Loan in Loan Group 1
which became a Liquidated Mortgage Loan during the prior calendar month, of
the lesser of (i) the Group 1 Senior Percentage of the Stated Principal
Balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal with respect to such Mortgage Loan.
Group 1 Senior Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of the Group 1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group 1 as of
the first day of the related Collection Period (excluding any Group 1
Mortgage Loans that were subject to a Payoff, the principal of which was
distributed on the Distribution Date preceding the current Distribution
Date); provided, however, in no event will the Group 1 Senior Percentage
exceed 100%.
Group 1 Senior Principal Distribution Amount: With respect to
any Distribution Date, the sum of (i) the Group 1 Senior Percentage of the
Principal Payment Amount for Loan Group 1, (ii) the applicable Senior
Prepayment Percentage of the Principal Prepayment Amount for Loan Group 1,
and (iii) the Group 1 Senior Liquidation Amount.
Group 1 Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group 1 Senior Percentage.
Group 2: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 2 or with respect to the Certificates, the
Group 2 Certificates (as specified in the Preliminary Statement).
Group 2 Senior Liquidation Amount: With respect to any
Distribution Date, the aggregate, for each Mortgage Loan in Loan Group 2
which became a Liquidated Mortgage Loan during the prior calendar month, of
the lesser of (i) the Group 2 Senior Percentage of the Stated Principal
Balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal with respect to such Mortgage Loan.
Group 2 Senior Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of the Group 2 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group 2 as of
the first day of the related Collection Period (excluding any Group 2
Mortgage Loans that were subject to a Payoff, the principal of which was
distributed on the Distribution Date preceding the current Distribution
Date); provided, however, in no event will the Group 2 Senior Percentage
exceed 100%.
Group 2 Senior Principal Distribution Amount: With respect to
any Distribution Date, the sum of (i) the Group 2 Senior Percentage of the
Principal Payment Amount for Loan Group 2, (ii) the applicable Senior
Prepayment Percentage of the Principal Prepayment Amount for Loan Group 2,
and (iii) the Group 2 Senior Liquidation Amount.
Group 2 Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group 2 Senior Percentage.
Group 3: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 3 or with respect to the Certificates, the
Group 3 Certificates (as specified in the Preliminary Statement).
Group 3 Senior Liquidation Amount: With respect to any
Distribution Date, the aggregate, for each Mortgage Loan in Loan Group 3
which became a Liquidated Mortgage Loan during the prior calendar month, of
the lesser of (i) the Group 3 Senior Percentage of the Stated Principal
Balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal with respect to such Mortgage Loan.
Group 3 Senior Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of the Group 3 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group 3, as of
the first day of the related Collection Period (excluding any such Mortgage
Loans that were subject to a Payoff, the principal of which was distributed
on the Distribution Date preceding the current Distribution Date); provided,
however, in no event will the Group 3 Senior Percentage exceed 100%.
Group 3 Senior Principal Distribution Amount: With respect to
any Distribution Date, the sum of (i) the Group 3 Senior Percentage of the
Principal Payment Amount for Loan Group 3, (ii) the applicable Senior
Prepayment Percentage of the Principal Prepayment Amount for Loan Group 3,
and (iii) the Group 3 Senior Liquidation Amount.
Group 3 Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group 3 Senior Percentage.
Group 4: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 4 or with respect to the Certificates, the
Group 4 Certificates (as specified in the Preliminary Statement).
Group 4 Senior Liquidation Amount: With respect to any
Distribution Date, the aggregate, for each Mortgage Loan in Loan Group 4
which became a Liquidated Mortgage Loan during the prior calendar month, of
the lesser of (i) the Group 4 Senior Percentage of the Stated Principal
Balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal with respect to such Mortgage Loan.
Group 4 Senior Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of the Group 4 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group 4, as of
the first day of the related Collection Period (excluding any such Mortgage
Loans that were subject to a Payoff, the principal of which was distributed
on the Distribution Date preceding the current Distribution Date); provided,
however, in no event will the Group 4 Senior Percentage exceed 100%.
Group 4 Senior Principal Distribution Amount: With respect to
any Distribution Date, the sum of (i) the Group 4 Senior Percentage of the
Principal Payment Amount for Loan Group 4, (ii) the applicable Senior
Prepayment Percentage of the Principal Prepayment Amount for Loan Group 4,
and (iii) the Group 4 Senior Liquidation Amount.
Group 4 Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group 4 Senior Percentage.
Group 5: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 5 or with respect to the Certificates, the
Group 5 Certificates.
Group 5 Certificates: As specified in the Preliminary Statement.
Group 5 Credit Support Depletion Date: The first Distribution
Date on which the aggregate Class Principal Balance of the Group 5
Subordinate Certificates has been or will be reduced to zero.
Group 5 Interest Rate Cap Account: The separate Eligible Account
created and initially maintained by the Trust Administrator pursuant to
Section 4.10 in the name of the Trust Administrator for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A. in trust for
registered holders of Adjustable Rate Mortgage Trust 2005-10, Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2005-10, Group 5
Certificates" Funds in the Group 5 Interest Rate Cap Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement. The Group 5 Interest Rate Cap Account will not be an asset
of any REMIC. Ownership of the Group 5 Interest Rate Cap Account is
evidenced by the Class 5-X Certificates.
Group 5 Interest Rate Cap Agreement: The interest rate cap
agreement relating to the Group 5 Certificates consisting of the ISDA Master
Agreement, the Schedule and the Credit Support Annex, each dated as of the
Closing Date and the Confirmations related thereto, between the Trustee on
behalf of the Trust and the Group 5 Interest Rate Cap Counterparty, as such
agreement may be amended and supplemented in accordance with its terms and
any replacement Group 5 Interest Rate Cap Agreement acceptable to the
Depositor and the Trustee.
Group 5 Interest Rate Cap Counterparty: Credit Suisse First
Boston International, or any successor in interest thereto under the Group 5
Interest Rate Cap Agreement.
Group 5 LIBOR Certificates: As specified in the Preliminary
Statement.
Group 5 Senior Certificates: As specified in the Preliminary
Statement.
Group 5 Senior Enhancement Percentage: For any Distribution
Date, the fraction, expressed as a percentage, the numerator of which is the
sum of the aggregate Class Principal Balance of the Class M Certificates and
the Overcollateralization Amount (which, for purposes of this definition
only, shall not be less than zero), in each case after giving effect to
payments on such Distribution Date (assuming no Trigger Event has occurred),
and the denominator of which is the Aggregate Loan Group Balance for Loan
Group 5 for such Distribution Date.
Group 5 Senior Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the aggregate Class Principal Balance of the Group 5 Senior
Certificates, immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the product of (i) 82.60% and (ii) the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date and (B) the amount, if
any, by which (i) the Aggregate Loan Group Balance for Loan Group 5 for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance for
Loan Group 5 as of the Cut-off Date.
Group 5 Subordinate Certificates: As specified in the
Preliminary Statement.
Group 6: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the Mortgage Loan Schedule as
having been assigned to Group 6 or with respect to the Certificates, the
Group 6 Certificates (as specified in the Preliminary Statement).
Group 6 Basis Risk Reserve Fund: The separate Eligible Account
created and initially maintained by the Trust Administrator pursuant to
Section 4.09 in the name of the Trust Administrator for the benefit of the
Group 6 Certificateholders and designated "Xxxxx Fargo Bank, N.A. in trust
for registered holders of Adjustable Rate Mortgage Trust 2005-10, Adjustable
Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, Group 6 LIBOR
Certificates." Funds in the Group 6 Basis Risk Reserve Fund shall be held in
trust for the Group 6 Certificateholders for the uses and purposes set forth
in this Agreement. The Group 6 Basis Risk Reserve Fund will not be an asset
of any REMIC. Ownership of the Group 6 Basis Risk Reserve Fund is evidenced
by the Class 6-X Certificates.
Group 6 Certificates: As specified in the Preliminary Statement.
Group 6 LIBOR Certificates: As specified in the Preliminary
Statement.
Group 6 Senior Certificates: As specified in the Preliminary
Statement.
Group 6 Senior Liquidation Amount: With respect to any
Distribution Date, the aggregate, for each Mortgage Loan in Loan Group 6
which became a Liquidated Mortgage Loan during the prior calendar month, of
the lesser of (i) the Group 6 Senior Percentage of the Stated Principal
Balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal with respect to such Mortgage Loan.
Group 6 Senior Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of the Group 6 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group 6, as of
the first day of the related Collection Period (excluding any such Mortgage
Loans that were subject to a Payoff, the principal of which was distributed
on the Distribution Date preceding the current Distribution Date); provided,
however, in no event will the Group 6 Senior Percentage exceed 100%.
Group 6 Senior Principal Distribution Amount: With respect to
any Distribution Date, the sum of (i) the Group 6 Senior Percentage of the
Principal Payment Amount for Loan Group 6, (ii) the applicable Senior
Prepayment Percentage of the Principal Prepayment Amount for Loan Group 6,
and (iii) the Group 6 Senior Liquidation Amount.
Group 6 Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group 6 Senior Percentage.
Index: With respect to any Mortgage Loan and each related
Adjustment Date, the index as specified in the related Mortgage Note.
Indirect Participants: Entities, such as banks, brokers, dealers
and trust companies, that clear through or maintain a custodial relationship
with a Participant, either directly or indirectly.
IndyMac: IndyMac Bank, F.S.B., and its successors and assigns.
IndyMac Serviced Mortgage Loans: The Mortgage Loans identified
as such on the Mortgage Loan Schedule, for which IndyMac is the applicable
Servicer.
IndyMac Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
IndyMac, the Master Servicer and the Trust Administrator, and acknowledged by
the Trustee.
IndyMac Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the IndyMac Reconstituted Servicing Agreement.
Initial Bankruptcy Loss Coverage Amount: $205,637 with respect
to Loan Groups 1-4 and $100,000 with respect to Loan Group 6.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Initial Cut-off Date: September 1, 2005.
Initial Mortgage Loan: The initial Mortgage Loans conveyed by the
Depositor to the Trust Fund pursuant to Section 2.01 hereof on the Closing
Date, which are listed on the Mortgage Loan Schedule on such date.
Insurance Policy: With respect to any Mortgage Loan included in
the Trust Fund, any Mortgage Guaranty Insurance Policy, any standard hazard
insurance policy, flood insurance policy or title insurance policy, including
all riders and endorsements thereto in effect, including any replacement
policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, any other Insurance
Policies with respect to the Mortgage Loans, to the extent such proceeds are
not applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the related Servicer's or Designated
Servicer's normal servicing procedures.
Interest Determination Date: With respect to the LIBOR
Certificates and for each Accrual Period, the second LIBOR Business Day
preceding the commencement of such Accrual Period.
Interest Distribution Amount: With respect to any Distribution
Date and interest bearing Class of Group 1, Group 2, Group 3, Group 4, Group
6 and Class C-B Certificates, the sum of (i) one month's interest accrued
during the related Accrual Period at the applicable Pass-Through Rate for
such Class on the related Class Principal Balance or Class Notional Amount,
as applicable, subject to reduction pursuant to Section 4.01(I)(B), and
(ii) any Class Unpaid Interest Amounts for such Class and Distribution Date.
Interest Remittance Amount: For any Distribution Date and the
Mortgage Loans in Loan Group 5, an amount equal to the sum of (1) all
interest collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans in such Loan Group during the related
Collection Period, the interest portion of Payaheads previously received on
the Mortgage Loans in such Loan Group and intended for application in the
related Collection Period and interest portion of all Payoffs (net of Payoff
Interest for such Distribution Date) and Curtailments received on the
Mortgage Loans in such Loan Group during the related Prepayment Period, less
(x) the applicable Expense Fees with respect to such Mortgage Loans and
(y) unreimbursed Advances and other amounts due to the Master Servicer, the
applicable Servicer, the Back-Up Servicer and the Trust Administrator with
respect to such Mortgage Loans, to the extent allocable to interest, (2) all
Compensating Interest Payments paid by a Servicer with respect to the
Mortgage Loans in such Loan Group with respect to the related Prepayment
Period, (3) the portion of any Substitution Adjustment Amount and Purchase
Price paid with respect to the Mortgage Loans in such Loan Group during the
related Collection Period, in each case allocable to interest and the
proceeds of any purchase of such Mortgage Loans by the Terminating Entity
pursuant to Section 11.01 in an amount not exceeding the interest portion of
the Par Value with respect to such Mortgage Loans, (4) all Net Liquidation
Proceeds and recoveries (net of unreimbursed Advances, Servicing Advances and
expenses, to the extent allocable to interest, and unpaid Expense Fees), if
any, collected with respect to the Mortgage Loans in such Loan Group during
the prior calendar month, to the extent allocable to interest and (5) the
Capitalized Interest Distribution for such Distribution Date.
Interest Shortfall: For any Distribution Date and the Mortgage
Loans in Loan Group 5, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on
Mortgage Loans in Loan Group 5 resulting from (a) Principal Prepayments
received during the related Prepayment Period after giving effect to the
Compensating Interest Payment for such Distribution Date and (b) interest
payments on certain of the Mortgage Loans in Loan Group 5 being limited
pursuant to the provisions of the Relief Act.
LaSalle: LaSalle Bank, National Association.
LaSalle Bank Custodial Agreement: That certain Custodial
Agreement dated as of September 1, 2005 among LaSalle, the Trustee and the
Trust Administrator.
Lender Paid Mortgage Guaranty Insurance Policy: Any lender paid
Mortgage Guaranty Insurance Policy.
LIBOR Business Day: Any day other than (i) a Saturday or a
Sunday or (ii) a day on which banking institutions in the State of New York
or in the City of London, England are required or authorized by law to be
closed.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a defaulted Mortgage Loan (including any REO Property) which was liquidated
in the calendar month preceding the month of such Distribution Date and as to
which a Servicer, has determined (with respect to the Non-Designated Mortgage
Loans, in accordance with this Agreement, or with respect to the Designated
Mortgage Loans, in accordance with the related Designated Servicing
Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan, including the final
disposition of the related REO Property, whether from Insurance Proceeds,
Liquidation Proceeds or otherwise.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by a Servicer (or the related Subservicer) in connection
with the liquidation of any defaulted Mortgage Loan and not recovered by the
related Servicer (or the related Subservicer) under a Mortgage Guaranty
Insurance Policy for reasons other than such Servicer's failure to comply
with Section 3.09 hereof, such expenses including, without limitation, legal
fees and expenses, any unreimbursed amount expended by a Servicer pursuant to
Section 3.11 hereof respecting the related Mortgage and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration or preservation to the extent not previously reimbursed under any
hazard insurance policy for reasons other than such Servicer's failure to
comply with Section 3.11 hereof.
Liquidation Principal: With respect to any Distribution Date and
a Loan Group, the principal portion of Liquidation Proceeds received with
respect to each Mortgage Loan in that Loan Group, but not in excess of the
principal balance of such Mortgage Loan, which became a Liquidated Mortgage
Loan (but not in excess of the principal balance thereof) during the
preceding calendar month.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property other than Recoveries.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3,
Loan Group 4, Loan Group 5 or Loan Group 6, as applicable. Loan Group 1,
Loan Group 2, Loan Group 3 and Loan Group 4 together will constitute one
sub-trust, Loan Group 5 will constitute another sub-trust and Loan Group 6
will constitute a third sub-trust.
Loan Group 1: All Mortgage Loans identified as Loan Group 1
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Loan Group 3
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 4: All Mortgage Loans identified as Loan Group 4
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 5: All Mortgage Loans identified as Loan Group 5
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 6: All Mortgage Loans identified as Loan Group 6
Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed as
a percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property.
Loss and Delinquency Test: With respect to the SPS Mortgage
Loans, SPS will fail the Loss and Delinquency Test on any date of
determination as to which (i) the aggregate outstanding principal balance of
the SPS Mortgage Loans delinquent 60 days or more (including all related REO
Properties and related Mortgage Loans in foreclosure) (averaged over the
preceding six month period), as a percentage of the aggregate principal
balance of the SPS Mortgage Loans as of the first day of the month of such
determination is equal to or greater than 50% or (ii) cumulative Realized
Losses for the SPS Mortgage Loans exceed (a) with respect to any month prior
to the third anniversary of the first Distribution Date, 20% of the aggregate
principal balance of the SPS Mortgage Loans as of the Closing Date (the
"Original SPS Mortgage Loan Principal Balance"), (b) with respect to any
month on or after the third anniversary but prior to the eighth anniversary
of the first Distribution Date, 30% of the Original SPS Mortgage Loan
Principal Balance, (c) with respect to any month on or after the eighth
anniversary but prior to the ninth anniversary of the first Distribution
Date, 35% of the Original SPS Mortgage Loan Principal Balance, (d) with
respect to any month on or after the ninth anniversary but prior to the tenth
anniversary of the first Distribution Date, 40% of the Original SPS Mortgage
Loan Principal Balance, (e) with respect to any month on or after the tenth
anniversary but prior to the eleventh anniversary of the first Distribution
Date, 45% of the Original SPS Principal Balance and (f) with respect to any
month on or after the eleventh anniversary of the first Distribution Date,
50% of the Original SPS Mortgage Loan Principal Balance. For purposes of
this definition, the term "Realized Losses" shall not include Debt Service
Reductions or Deficient Valuations.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Majority Servicer: With respect to any Optional Termination, the
Servicer servicing the largest percentage of Mortgage Loans in the Loan
Group(s) to be purchased in such Optional Termination (by Stated Principal
Balance of outstanding Mortgage Loans on the Optional Termination Date) which
has notified the Trust Administrator of its intention to be the Terminating
Entity of such Loan Group(s) pursuant to Section 11.02(a).
Marker Rate: With respect to the Class 5-X Certificates and the
REMIC II Regular Interests LT1, LT2, LT3 and LT4 and any Distribution Date, 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.
Master Servicer: Xxxxx Fargo.
Maturity Date: The Distribution Date occurring in January 2036.
Maximum Interest Rate: With respect to the Group 5 Certificates
and any Distribution Date, an annual rate equal to the weighted average of
the Maximum Mortgage Rates of the Mortgage Loans in Loan Group 5 minus the
weighted average Expense Fee Rate of the Mortgage Loans in Loan Group 5.
Maximum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage
Rate thereunder.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware,
or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on
the MERS® System.
MERS® System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage
Loan.
Minimum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage
Rate thereunder.
MOM Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee fro the originator of such Mortgage Loan and its
successors and assigns.
Monthly Excess Cashflow: For any Distribution Date, an amount
equal to the sum of the Monthly Excess Interest, Overcollateralization
Release Amount, if any for such date, and any Principal Payment Amount
remaining after the application of items (i) through (v) in the distribution
thereof pursuant to Section 4.01(II)(a), (b) or (c), as applicable.
Monthly Excess Interest: For any Distribution Date, any Interest
Remittance Amount remaining after the application of items (i) through (v) in
the distribution thereof, pursuant to Section 4.01(II)(a).
Moody's: Xxxxx'x Investors Service, Inc. or any successor
thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate securing a Mortgage Note.
Mortgaged Property: The underlying real property securing a
Mortgage Loan or, with respect to a Cooperative Loan, the related Cooperative
Shares and Proprietary Lease.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File
and the Servicer Mortgage File.
Mortgage Guaranty Insurance Policy: Each policy of primary
mortgage guaranty insurance or any replacement policy therefore with respect
to any Mortgage Loan.
Mortgage Loans: Such of the mortgage loans and cooperative loans
(if any) transferred and assigned to the Trustee pursuant to the provisions
hereof as from time to time are held as a part of the Trust Fund (including
any REO Property), the mortgage loans so held being identified in the
Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property. With respect to each Mortgage Loan
that is a Cooperative Loan, if any, "Mortgage Loan" shall include, but not be
limited to, the related Mortgage Note, Security Agreement, Assignment of
Proprietary Lease, Recognition Agreement, Cooperative Shares and Proprietary
Lease and, with respect to each Mortgage Loan other than a Cooperative Loan,
"Mortgage Loan" shall include, but not be limited to the related Mortgages
and the related Mortgage Notes.
Mortgage Loan Purchase Price: The price, calculated as set forth
in Section 11.01, to be paid in connection with the purchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to time amended by the Sellers to reflect the addition of Qualified
Substitute Mortgage Loans and the purchase of Mortgage Loans pursuant to
Sections 2.01, 2.02 or 2.03) transferred to the Trustee as part of the Trust
Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan and applicable Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state and
zip code;
4. a code indicating the type of Mortgaged Property (detached single
family dwelling, PUD, condominium unit, two- to four-unit residential
property or Cooperative Unit) and the occupancy status.
5. the original months to maturity or the remaining months to maturity
from the Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner
but based on the actual amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of business
on the Cut-off Date, after deduction of payments of principal due on or
before the Cut-off Date whether or not collected;
12. a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take out refinance);
13. whether such Mortgage Loan has a Prepayment Premium;
14. [reserved];
15. the Expense Fee Rate as of the Cut-off Date;
16. the related Servicing Fee Rate (which may be disclosed on the Mortgage
Loan Schedule in two parts identified as the master servicing fee and
servicing fee or in two parts identified as the "Lender Fee" and the
"Mgmt Fee");
17. whether such Mortgage Loan is a DLJMC Mortgage Loan or a WMB Mortgage
Loan;
18. whether such Mortgage Loan is a WMB Serviced Mortgage Loan, SPS
Serviced Mortgage Loan, Xxxxx Fargo Serviced Mortgage Loan, PHH
Mortgage Serviced Mortgage Loan, National City Serviced Mortgage Loan,
IndyMac Serviced Mortgage Loan, GMAC Mortgage Serviced Mortgage Loan,
Countrywide Serviced Mortgage Loan or EverBank Serviced Mortgage Loan;
19. the Index that is associated with such Mortgage Loan, if applicable;
20. the Gross Margin, if applicable;
21. the Periodic Rate Cap, if applicable;
22. the Minimum Mortgage Rate, if applicable;
23. the Maximum Mortgage Rate, if applicable;
24. the first Adjustment Date after the Cut-off Date, if applicable;
25. a code indicating whether the Mortgage Loan is a MERS Mortgage Loan
and, if so, its corresponding MIN;
26. the Custodian for such Mortgage Loan; and
With respect to the Mortgage Loans in the aggregate, each
Mortgage Loan Schedule shall set forth the following information, as of the
Cut-off Date:
1. the number of Mortgage Loans;
2. the current aggregate principal balance of the Mortgage Loans as of the
close of business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not collected;
and
3. the weighted average Mortgage Rate of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage
Note.
Mortgagor: The obligor on a Mortgage Note.
National City: National City Mortgage Co., and its successors
and assigns.
National City Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which National City is
the applicable Servicer.
National City Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
National City, the Master Servicer and the Trust Administrator, and
acknowledged by the Trustee.
National City Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the National City Reconstituted Servicing Agreement.
Net Excess Spread: With respect to any Distribution Date and
Loan Group 5, a fraction, expressed as a percentage, the numerator of which
is equal to the excess of (x) the Aggregate Loan Group Balance for Loan
Group 5 for the immediately preceding Distribution Date, multiplied by the
product of (A) the Net WAC Rate for Loan Group 5 and (B) the actual number of
days elapsed in the related Accrual Period divided by 360 over (y) the
aggregate Current Interest for Loan Group 5 for such Distribution Date, and
the denominator of which is an amount equal to the Aggregate Loan Group
Balance for Loan Group 5 for the immediately preceding Distribution Date,
multiplied by the actual number of days elapsed in the related Accrual Period
divided by 360.
Net Funds Cap: For any Distribution Date and the Group 5 LIBOR
Certificates, will be a per annum rate equal to (a) a fraction, expressed as
a percentage, the numerator of which is the product of (1) the Optimal
Interest Remittance Amount for such date and (2) 12, and the denominator of
which is the Aggregate Loan Group Balance for Loan Group 5 (excluding any
such Mortgage Loans that were subject to a Payoff, the principal of which was
distributed on the Distribution Date preceding the current Distribution Date)
for the immediately preceding Distribution Date (or, in the case of the first
Distribution Date, the Aggregate Loan Group Balance for Loan Group 5 as of
the Initial Cut-off Date, multiplied by (b) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Accrual Period.
Net Interest Shortfalls: For any Distribution Date and the
Group 1, Group 2, Group 3, Group 4 and Group 6 Mortgage Loans, the sum of (A)
the amount of interest which would otherwise have been received for a
Mortgage Loan in the related Loan Group during the prior calendar month that
was the subject of (x) a Relief Act Reduction or (y) a Special Hazard Loss,
Fraud Loss or Bankruptcy Loss, after the exhaustion of the respective amounts
of coverage provided by the related Class B Certificates for those types of
losses; and (B) any related Net Prepayment Interest Shortfalls.
Net Liquidation Proceeds: With respect to any Liquidated
Mortgage Loan, the excess of the related Liquidation Proceeds over the sum of
Liquidation Expenses, Expense Fees and unreimbursed Advances and Servicing
Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate for such Mortgage Loan less the
related Expense Fee Rate.
Net Prepayment Interest Shortfalls: With respect to any
Distribution Date, the amount by which the aggregate of Prepayment Interest
Shortfalls during the related Prepayment Period exceeds the Compensating
Interest Payment for such Distribution Date.
Net Realized Losses: For any Class of Certificates, other than
the Group 5 Certificates, and any Distribution Date, the excess of (i) the
amount of unreimbursed Realized Losses previously allocated to that
Class over (ii) the sum of (a) the amount of any increases to the Class
Principal Balance of that Class pursuant to Section 4.03 due to Recoveries
and (b) amounts previously distributed to such Class in respect of Realized
Losses pursuant to Section 4.01.
Net Recovery Realized Losses: For any Class of Certificates,
other than the Group 5 Certificates, and any Distribution Date, the excess of
Net Realized Losses for such Distribution Date over the amount distributed in
respect of Realized Losses pursuant to Section 4.01 on that Distribution Date.
Net WAC Rate: With respect to Loan Group 1, Loan Group 2, Loan
Group 3, Loan Group 4 and Loan Group 6 and for any Distribution Date, the
Weighted Average Pass-Through Rate for such Loan Group for such Distribution
Date.
In addition, for any purpose for which the Net WAC Rate is
calculated, the interest rate on the Mortgage Loans shall be appropriately
adjusted to account for the difference between any counting convention used
with respect to the Mortgage Loans and any counting convention used with
respect to a REMIC Regular Interest.
Non-Designated Mortgage Loans: The Mortgage Loans that are not
Designated Mortgage Loans.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by the Master Servicer or a
Servicer that, in the good faith judgment of the Master Servicer or a
Servicer (as applicable), will not be ultimately recoverable by the Master
Servicer or a Servicer (as applicable) from the related Mortgagor, related
Liquidation Proceeds or otherwise from proceeds or collections on the related
Mortgage Loan.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, a Subservicer, the Trustee or the Trust
Administrator, as the case may be, and delivered to the Depositor, the
Sellers, the Master Servicer, the Special Servicer, the Servicers, the
Trustee or the Trust Administrator, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Depositor, the Master Servicer or a Servicer, including
in-house counsel, reasonably acceptable to the Trustee and the Trust
Administrator. With respect to the definition of Eligible Account in this
Article I and Sections 2.05 and 7.04 hereof and any opinion dealing with the
qualification of each REMIC created hereunder or compliance with the REMIC
Provisions, such counsel must (i) in fact be independent of the Depositor,
the Master Servicer and such Servicer, (ii) not have any direct financial
interest in the Depositor, the Master Servicer or such Servicer or in any
affiliate of either of them and (iii) not be connected with the Depositor,
the Master Servicer or such Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions; provided, that with respect to Xxxxx Fargo Bank, N.A. as Servicer,
such counsel may be in-house counsel for Xxxxx Fargo Bank, N.A. as Servicer.
Optimal Interest Remittance Amount: With respect to any
Distribution Date and Loan Group 5, the excess of (i) the product of (1)
(x) the weighted average of the Net Mortgage Rates of the Mortgage Loans in
Loan Group 5 as of the first day of the related Collection Period divided by
(y) 12 and (2) the Aggregate Loan Group Balance for Loan Group 5 for the
immediately preceding Distribution Date (excluding any such Mortgage Loans
that were subject to a Payoff, the principal of which was distributed on the
Distribution Date preceding the current Distribution Date), over (ii) any
expenses that reduce the Interest Remittance Amount with respect to Loan
Group 5 that did not arise as a result of a default or delinquency of the
Mortgage Loans in Loan Group 5 or were not taken into account in computing
the Expense Fee Rate.
Optional Termination: The purchase of the Mortgage Loans
pursuant to Section 11.01.
Optional Termination Date: The date fixed by a Terminating
Entity for the purchase of the Mortgage Loans pursuant to Section 11.01.
Optional Termination Notice Period: The period during which
notice is to be given to the affected Certificateholders of an Optional
Termination pursuant to Section 11.03(d).
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Overcollateralization Amount: For any Distribution Date, an
amount equal to the amount, if any, by which (x) the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date exceeds (y) the aggregate
Class Principal Balance of the Group 5 LIBOR Certificates after giving effect
to payments on such Distribution Date.
Overcollateralization Deficiency: For any Distribution Date, the
amount, if any, by which (x) the Targeted Overcollateralization Amount for
such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Class Principal Balance
of the Group 5 LIBOR Certificates resulting from the payment of the Principal
Payment Amount on such Distribution Date but prior to allocation of any
Applied Loss Amount on the Group 5 Certificates on such Distribution Date.
Overcollateralization Release Amount: For any Distribution Date,
an amount equal to the lesser of (x) the Principal Remittance Amount for Loan
Group 5 for such Distribution Date and (y) the amount, if any, by which (1)
the Overcollateralization Amount for such date, calculated for this purpose
on the basis of the assumption that 100% of the Principal Remittance Amount
for Loan Group 5 for such date is applied on such date in reduction of the
aggregate of the Class Principal Balances of the Group 5 LIBOR Certificates,
exceeds (2) the Targeted Overcollateralization Amount for such date.
Overcollateralized Group: As defined in Section 4.07(b).
Participant: A broker, dealer, bank, other financial institution
or other Person for whom DTC effects book entry transfers and pledges of
securities deposited with DTC.
Par-Value: As defined in Section 11.01.
Pass-Through Entity: (a) a regulated investment company
described in Section 851 of the Code, a real estate investment trust
described in Section 856 of the Code, a common trust fund or an organization
described in Section 1381(a) of the Code, (b) any partnership, trust or
estate or (c) any person holding a Class A Certificate as nominee for another
person.
Pass-Through Rate: For any interest bearing Class of
Certificates, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement. Interest on the Certificates, other
than the Group 5 LIBOR Certificates, Class 6-B-1, Class 6-B-2, Class 6-B-3
and Class 5-X Certificates, will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest on the Group 5 LIBOR
Certificates, Class 6-B-1, Class 6-B-2, Class 6-B-3 and Class 5-X
Certificates (to the extent it is entitled to interest from Loan Group 5)
will be computed on the basis of a 360-day year and the actual number of days
elapsed in the related Accrual Period.
Payahead: Any Scheduled Payment intended by the related
Mortgagor to be applied in a Collection Period subsequent to the Collection
Period in which such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if
received in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment in full.
Payoff Interest: For any Distribution Date with respect to each
SPS Serviced Mortgage Loan for which a Payoff was received on or after the
first calendar day of the month of such Distribution Date and before the 15th
calendar day of such month, an amount of interest thereon at the applicable
Net Mortgage Rate from the first day of such month through the day of receipt
thereof.
Percentage Interest: With respect to any Certificate, either the
percentage set forth on the face thereof or equal to the percentage obtained
by dividing the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Person: Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
PHH Mortgage: PHH Mortgage Corporation, and its successors and
assigns.
PHH Mortgage Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which PHH Mortgage is
the applicable Servicer.
PHH Mortgage Reconstituted Servicing Agreement: That certain
Reconstituted Servicing Agreement dated as of September 1, 2005 among DLJMC,
PHH Mortgage, the Master Servicer and the Trust Administrator, and
acknowledged by the Trustee.
PHH Mortgage Underlying Servicing Agreement: The "Servicing
Agreement" referred to in the PHH Mortgage Reconstituted Servicing Agreement.
Physical Certificates: As set forth in the Preliminary Statement.
Pledge Instruments: With respect to each Cooperative Loan, the
Stock Power, the Assignment of Proprietary Lease and the Security Agreement.
Prefunded Amount: The amount deposited in the Prefunding Account
on the Closing Date, which shall equal approximately $19,849,926.
Prefunding Account: The separate Eligible Account created and
maintained by the Trust Administrator pursuant to Section 3.05(g) in the name
of the Trust Administrator for the benefit of the Certificateholders and
designated "Xxxxx Fargo Bank, N.A., in trust for registered holders of
Adjustable Rate Mortgage Trust 2005-10 Adjustable Rate Mortgage-Backed
Pass-Through Certificates, Series 2005-10." Funds in the Prefunding Account
shall be held in trust for the Certificateholders for the uses and purposes
set forth in this Agreement and shall not be a part of any REMIC created
hereunder; provided, however, that any investment income earned from
Permitted Investments made with funds in the Prefunding Account shall be for
the account of the Depositor.
Prefunding Period: The period from the Closing Date until the
earliest of (i) the date on which the aggregate amounts on deposit in the
Prefunding Account are reduced to zero, or (ii) an Event of Default occurs or
(iii) November 24, 2005.
Prepayment Interest Shortfall: With respect to any Mortgage
Loan, Distribution Date and Principal Prepayment (other than a Payoff on a
WMB Serviced Mortgage Loan, Xxxxx Fargo Serviced Mortgage Loan or a SPS
Serviced Mortgage Loan received during the period from and including the
first day to and including the 14th day of the month of such Distribution
Date) received during the related Prepayment Period, the difference between
(i) one full month's interest at the applicable Mortgage Rate (giving effect
to any applicable Relief Act Reduction, Debt Service Reduction and Deficient
Valuation), as reduced by the Servicing Fee Rate, if applicable, on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment or, if such Principal Prepayment is a Curtailment, the principal
amount of such Curtailment and (ii) the amount of interest actually received
with respect to such Mortgage Loan in connection with such Principal
Prepayment, net of the Servicing Fee, if applicable.
Prepayment Period: With respect to each Distribution Date and
each Payoff with respect to a WMB Serviced Mortgage Loan, Xxxxx Fargo
Serviced Mortgage Loan or SPS Serviced Mortgage Loan, the related "Prepayment
Period" will commence on the 15th day of the month preceding the month in
which the related Distribution Date occurs (or, in the case of the first
Distribution Date, commencing on the Cut-off Date) and will end on the 14th
day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and each Payoff with respect to any Mortgage Loan
serviced by a Designated Servicer, the related "Prepayment Period" will be
the period set forth in the related Designated Servicing Agreement. With
respect to each Distribution Date and each Curtailment with respect to any
Mortgage Loan, the related "Prepayment Period" will be the calendar month
preceding the month in which such Distribution Date occurs.
Prepayment Premium: With respect to any Mortgage Loan, any fee
or premium required to be paid if the Mortgagor prepays such Mortgage Loan as
provided in the related Mortgage Note or Mortgage.
Principal Payment Amount: For any Distribution Date and Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6, the sum of
(i) the principal portion of the Scheduled Payments on the Mortgage Loans in
such Loan Group due on the related Due Date, (ii) the principal portion of
repurchase proceeds received with respect to any Mortgage Loan in such Loan
Group which was repurchased as permitted or required by this Agreement during
the period beginning on the 15th day of the month preceding such Distribution
Date and ending on the 14th day of the month of such Distribution Date, with
notice and receipt of funds three (3) Business Days prior to the 14th day of
the month of such Distribution Date and (iii) any other unscheduled payments
of principal which were received on the Mortgage Loans in such Loan
Group during the related calendar month preceding the month of such
Distribution Date, other than Principal Prepayments or Liquidation Principal.
For any Distribution Date and Loan Group 5, an amount equal to
the Principal Remittance Amount for such date minus the Overcollateralization
Release Amount, if any, for such date, plus, with respect to the Distribution
Date in December 2005, the amount remaining, if any, in the Prefunding
Account at the end of the Prefunding Period, net of investment income.
Principal Prepayment: Any payment of principal on a Mortgage
Loan which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6, the sum of
(i) all Principal Prepayments relating to the Mortgage Loans in such Loan
Group which were received during the related Prepayment Period and (ii) all
Recoveries received during the calendar month preceding the month of that
Distribution Date.
Principal Remittance Amount: For any Distribution Date and Loan
Group 5, an amount equal to the sum of (1) all principal collected (other
than Payaheads) or advanced in respect of Scheduled Payments on the Mortgage
Loans in such Loan Group during the related Collection Period (less
unreimbursed Advances, Servicing Advances and other amounts due to the
Servicers, the Trustee, the Master Servicer and the Trust Administrator with
respect to the Mortgage Loans in such Loan Group, to the extent allocable to
principal) and the principal portion of Payaheads previously received on the
Mortgage Loans in such Loan Group and intended for application in the related
Collection Period, (2) all Principal Prepayments received on the Mortgage
Loans in such Loan Group during the related Prepayment Period, (3) the
Purchase Price of each Mortgage Loan in such Loan Group that was repurchased
by the related Seller or purchased by the Special Servicer pursuant to
Section 3.11(g) or the holder of the Subordinate Certificates pursuant to
Section 3.11(f), during the related Collection Period and the principal
proceeds of any purchase of Mortgage Loans in such Loan Group by the
Terminating Entity pursuant to Section 11.01 in an amount not exceeding the
principal portion of the Par Value with respect to such Mortgage Loans, (4)
the portion of any Substitution Adjustment Amount paid with respect to any
Deleted Mortgage Loans in such Loan Group during the related Collection
Period allocable to principal, (5) all Net Liquidation Proceeds (net of
unreimbursed Advances, Servicing Advances and other expenses, to the extent
allocable to principal) and any other Recoveries collected with respect to
the Mortgage Loans in such Loan Group during the preceding calendar month, to
the extent allocable to principal, and (6) amounts, if any, withdrawn from
the Group 5 Interest Rate Cap Account to cover Realized Losses on the Group 5
Mortgage Loans incurred during the related Collection Period.
Principal Transfer Amount: For any Distribution Date and each
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Class A Certificates related to such
Undercollateralized Group over the Aggregate Loan Group Balance of such Group.
Private Certificates: As set forth in the Preliminary Statement.
Proprietary Lease: The lease on a Cooperative Unit evidencing
the possessory interest of the owner of the Cooperative Shares in such
Cooperative Unit.
Pro Rata Share: With respect to any Distribution Date and any
Class of Class B Certificates, the portion of the related Subordinate
Principal Distribution Amount allocable to such Class, equal to the product
of the related Subordinate Principal Distribution Amount on such Distribution
Date and a fraction, the numerator of which is the related Class Principal
Balance of such Class and the denominator of which is the aggregate of the
Class Principal Balances of the related Class B Certificates.
Prospectus: The Prospectus, dated January 25, 2005, relating to
the offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to
Rule 424(b) under the 1933 Act with respect to the offer and sale of the
offered certificates.
Prospectus Supplement: The Prospectus Supplement, dated
September 28, 2005, relating to the offering of the Offered Certificates in
the form in which it was or will be filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the 1933 Act with respect to the
offer and sale of the offered certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required
repurchased by the related Seller pursuant to Section 2.02 or 2.03, purchased
by a holder of certain Certificates pursuant to Section 3.11(f) or purchased
at the option of the Special Servicer pursuant to Section 3.11(g), the sum of
(i) 100% of the Stated Principal Balance of the Mortgage Loan as of the first
day of the month of such purchase, (ii) accrued and unpaid interest on the
Mortgage Loan at the applicable Mortgage Rate (reduced by the related
Servicing Fee Rate, if the purchaser is also the Servicer thereof) from the
first day of the month of such purchase to the first day of the month
immediately following the month of such purchase, (iii) in the case of a
Mortgage Loan purchased by the related Seller or the Depositor, the amount of
any unreimbursed Advances and Servicing Advances made by a Servicer, if such
Servicer is not the Seller or the Depositor, with respect to such Mortgage
Loan or, in the case of a Mortgage Loan purchased by the Special Servicer,
any unreimbursed Advances and Servicing Advances payable to any Servicer
(other than the Servicer or Special Servicer, as the case may be, which is
purchasing such Mortgage Loans) and (iv) with respect to any purchase by the
related Seller pursuant to Section 2.03, any costs and damages actually
incurred and paid by or on behalf of the Trust in connection with any breach
of the representation and warranty set forth in Schedule IIIA(viii) or
Schedule IIIB(viii), as applicable, as a result of a violation of a predatory
or abusive lending law applicable to such Mortgage Loan. With respect to any
Mortgage Loan required or allowed to be purchased, the Special Servicer, the
Certificateholder, the related Seller or the Depositor, as applicable, shall
deliver to the Trustee and the Trust Administrator an Officer's Certificate
as to the calculation of the Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and
licensed in such states to transact a mortgage guaranty insurance business in
such states and to write the insurance provided by the insurance policy
issued by it, approved as a FNMA or FHLMC approved mortgage insurer or having
a claims paying ability rating of at least "AA" or equivalent rating by a
nationally recognized statistical rating organization. Any replacement
insurer with respect to a Mortgage Loan must have at least as high a claims
paying ability rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: One or more mortgage Loans
substituted by the related Seller for one or more Deleted Mortgage Loans
which must, on the date of such substitution, as confirmed in a Request for
Release, substantially in the form of Exhibit K, individually or in the
aggregate and on a weighted average basis, as applicable (i) have a Stated
Principal Balance, after deduction of the principal portion of the Scheduled
Payment due in the month of substitution, not in excess of, and not more than
10% less than the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan to
Value Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a
remaining term to maturity not more than one year greater than or less than
that of the Deleted Mortgage Loan; provided that the remaining term to
maturity of any such Mortgage Loan shall be no greater than the last maturing
Mortgage Loan immediately prior to any substitution; (v) have a Maximum
Mortgage Rate and Minimum Mortgage Rate not less than the respective such
rates for the Deleted Mortgage Loan, have a Gross Margin equal to or greater
than the Deleted Mortgage Loan and have the same Index as the Deleted
Mortgage Loan; (vi) not be a Cooperative Loan unless the Deleted Mortgage
Loan was a Cooperative Loan and (vii) comply with each representation and
warranty set forth in Section 2.03(b).
Rating Agencies: Xxxxx'x, S&P and DBRS, or any successor to
either of them.
Ratings: As of any date of determination, the ratings, if any,
of the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with
respect to each Liquidated Mortgage Loan, an amount (not less than zero or
more than the Stated Principal Balance of the Mortgage Loan) as of the date
of such liquidation, equal to (i) the Stated Principal Balance of the
Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the applicable Net Mortgage Rate from the related Due Date
as to which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the related Due Date in the month in which
Liquidation Proceeds are required to be distributed on the Stated Principal
Balance of such Liquidated Mortgage Loan from time to time, minus (iii) the
Net Liquidation Proceeds, if any, received during the month in which such
liquidation occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Liquidated Mortgage Loan; (2) for
any Mortgage Loan subject to a Deficient Valuation, the excess of the Stated
Principal Balance of that Mortgage Loan over the principal amount as reduced
in connection with the proceedings resulting in the Deficient Valuation; or
(3) for any Debt Service Reduction Mortgage Loan, the present value of all
monthly Debt Service Reductions on the Mortgage Loan, assuming that the
mortgagor pays each Scheduled Payment on the applicable Due Date and that no
Principal Prepayments are received on the Mortgage Loan, discounted at the
applicable Mortgage Rate.
Realized Losses allocated to the Class 5-X Certificates shall be
allocated first to the REMIC IV Regular Interest 5-X-IO in reduction of the
accrued but unpaid interest thereon until such accrued and unpaid interest
shall are reduced to zero and then to the REMIC IV Regular Interest 5-X-PO in
reduction of the principal balance thereof.
Recognition Agreement: An Agreement among a Cooperative
Corporation, a lender and a Mortgagor with respect to a Cooperative Loan
whereby such parties (i) acknowledge that such lender may make, or intends to
make, such Cooperative Loan, (ii) make certain agreements with respect to
such Cooperative Loan.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form on
such Distribution Date, the close of business on the last Business Day of the
month preceding the month in which the applicable Distribution Date occurs.
With respect to any Distribution Date and the LIBOR Certificates held in
Book-Entry Form on such Distribution Date, the close of business on the
Business Day immediately preceding such Distribution Date.
Recovery: With respect to any Distribution Date and Mortgage
Loan that became a Liquidated Mortgage Loan in a month preceding the month
prior to the Distribution Date, an amount received in respect of principal on
such mortgage loan which has previously been allocated as a Realized Loss or
Applied Loss Amount to a class or classes of certificates, net of
reimbursable expenses.
Reference Bank Rate: With respect to any Accrual Period relating
to the LIBOR Certificates as follows: the arithmetic mean (rounded upwards,
if necessary, to the nearest one sixteenth of a percent) of the offered rates
for United States dollar deposits for one month which are offered by the
Reference Banks as of 11:00 A.M., London time, on the Interest Determination
Date prior to the first day of such Accrual Period to prime banks in the
London interbank market for a period of one month in amounts approximately
equal to the aggregate Class Principal Balance of the LIBOR Certificates;
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 of the rates quoted by one or more major banks in New York City,
selected by the Trust Administrator after consultation with DLJMC, 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 Class Principal Balance of the LIBOR Certificates. If
no such quotations can be obtained, the Reference Bank Rate shall be the
Reference Bank Rate applicable to the preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the
London interbank market, selected by the Trust Administrator after
consultation with DLJMC.
Registration Statement: That certain registration statement on
Form S-3, as amended (Registration No. 333-120966), relating to the offering
by the Depositor from time to time of its Mortgage-Backed Pass-Through
Certificates (Issuable in Series) as heretofore declared effective by the
Securities and Exchange Commission.
Regular Certificates: All of the Certificates other than the
Class AR and Class AR-L Certificates.
Related Certificates: The following table sets forth certain of
the REMIC III Regular Interests and the Classes of Certificates that are
related to each of them:
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REMIC III Regular Interest Related Certificates
-------------------------------------------------------------------------------
Class 6-A-1L Class 6-A-1
Class 6-A-2-1L Class 6-A-2-1
Class 6-A-2-2L Class 6-A-2-2
Class 6-B-1L Class 6-B-1
Class 6-B-2L Class 6-B-2
Class 6-B-3L Class 6-B-3
Class 6-B-4L Class 6-B-4
Class 6-B-5L Class 6-B-5
Class 6-B-6L Class 6-B-6
-------------------------------------------------------------------------------
Relief Act: The Servicemembers Civil Relief Act, as amended, and
any similar state or local statute.
Relief Act Reductions: With respect to any Distribution Date and
any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended calendar month that
may be attributable to a prior month, if applicable, as a result of the
application of the Relief Act, the amount, if any, by which (i) interest
collected on such Mortgage Loan during the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit," within the
meaning of Section 860D of the Code. Reference herein to REMIC refers to
each REMIC created by the Preliminary Statement.
REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC I Available Distribution Amount: For each of Loan Group 1,
Loan Group 2, Loan Group 3 and Loan Group 4, for any Distribution Date, the
Available Distribution Amount for such Loan Group.
REMIC I Distribution Amount: For any Distribution Date, the
REMIC I Available Distribution Amounts shall be deemed distributed to
REMIC IV, as the holder of the REMIC I Regular Interests, and to Holders of
the Class AR-L Certificates in respect of Component I thereof, pursuant to
Section 4.01(IV)(a)(i), in the following amounts and priority:
(a) To the extent of the REMIC I Available Distribution Amount
for Loan Group 1:
(i) first, to Class Y-1 and Class Z-1 Regular Interests
and Component I of the Class AR-L Certificates, concurrently, the
Uncertificated Accrued Interest for such Classes remaining unpaid from
previous Distribution Dates, pro rata according to their respective
shares of such unpaid amounts;
(ii) second, to the Class Y-1 and Class Z-1 Regular
Interests and Component I of the Class AR-L Certificates, concurrently,
the Uncertificated Accrued Interest for such Classes for the current
Distribution Date, pro rata according to their respective
Uncertificated Accrued Interest;
(iii) third, to Component I of the Class AR-L Certificates,
until the Uncertificated Principal Balance thereof is reduced to zero;
and
(iv) fourth, to the Class Y-1 and Class Z-1 Regular
Interests, the Class Y-1 Principal Distribution Amount and the
Class Z-1 Principal Distribution Amount, respectively.
(b) To the extent of the REMIC I Available Distribution Amount
for Loan Group 2:
(i) first, to the Class Y-2 and Class Z-2 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid amounts;
(ii) second, to the Class Y-2 and Class Z-2 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes for the current Distribution Date, pro rata according to their
respective Uncertificated Accrued Interest; and
(iii) third, to the Class Y-2 and Class Z-2 Regular
Interests, the Class Y-2 Principal Distribution Amount and the
Class Z-2 Principal Distribution Amount, respectively.
(c) To the extent of the REMIC I Available Distribution Amount
for Loan Group 3:
(i) first, to the Class Y-3 and Class Z-3 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid amounts;
(ii) second, to the Class Y-3 and Class Z-3 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes for the current Distribution Date, pro rata according to their
respective Uncertificated Accrued Interest; and
(iii) third, to the Class Y-3 and Class Z-3 Regular
Interests, the Class Y-3 Principal Distribution Amount and the
Class Z-3 Principal Distribution Amount, respectively.
(d) To the extent of the REMIC I Available Distribution Amount
for Loan Group 4:
(i) first, to the Class Y-4 and Class Z-4 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes remaining unpaid from previous Distribution Dates, pro rata
according to their respective shares of such unpaid amounts;
(ii) second, to the Class Y-4 and Class Z-4 Regular
Interests, concurrently, the Uncertificated Accrued Interest for such
Classes for the current Distribution Date, pro rata according to their
respective Uncertificated Accrued Interest; and
(iii) third, to the Class Y-4 and Class Z-4 Regular
Interests, the Class Y-4 Principal Distribution Amount and the
Class Z-4 Principal Distribution Amount, respectively.
(e) To the extent of the REMIC I Available Distribution Amounts
for such Distribution Date remaining after payment of the amounts pursuant to
paragraphs (a), (b), (c) and (d) of this definition of "REMIC I Distribution
Amount":
(i) first, to each Class of 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 Class; 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 AR-L Certificates in respect of
Component I thereof, any remaining amount.
REMIC I Realized Losses: Realized Losses on the Group 1,
Group 2, Group 3 and Group 4 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 1 Loans, if any, shall be allocated
between the Class Y-1 and Class Z-1 Regular Interests pro rata according to
the amount of interest accrued but unpaid thereon, in reduction thereof; (2)
the interest portion of Realized Losses and Net Interest Shortfalls on the
Group 2 Loans, if any, shall be allocated between the Class Y-2 and Class Z-2
Regular Interests pro rata according to the amount of interest accrued but
unpaid thereon, in reduction thereof; (3) the interest portion of Realized
Losses and Net Interest Shortfalls on the Group 3 Loans, if any, shall be
allocated between the Class Y-3 and Class Z-3 Regular Interests pro rata
according to the amount of interest accrued but unpaid thereon, in reduction
thereof; and (4) the interest portion of Realized Losses and Net Interest
Shortfalls on the Group 4 Loans, if any, shall be allocated between the
Class Y-4 and Class Z-4 Regular Interests pro rata according to the amount of
interest accrued but unpaid thereon, in reduction thereof. 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 Group 1, Group 2, Group 3 and Group 4
Mortgage Loans shall be allocated to the REMIC I Regular Interests as
follows: (1) the principal portion of Realized Losses on the Group 1 Loans
shall be allocated, first, to the Class Y-1 Regular Interest to the extent of
the Class Y-1 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-1 Regular Interest in reduction of the Uncertificated Principal
Balance thereof; (2) the principal portion of Realized Losses on the Group 2
Loans shall be allocated, first, to the Class Y-2 Regular Interest to the
extent of the Class Y-2 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-2 Regular Interest in reduction of the
Uncertificated Principal Balance thereof; (3) the principal portion of
Realized Losses on the Group 3 Loans shall be allocated, first, to the
Class Y-3 Regular Interest to the extent of the Class Y-3 Principal Reduction
Amount in reduction of the Uncertificated Principal Balance of such Regular
Interest and, second, the remainder, if any, of such principal portion of
such Realized Losses shall be allocated to the Class Z-3 Regular Interest in
reduction of the Uncertificated Principal Balance thereof; and (4) the
principal portion of Realized Losses on the Group 4 Loans shall be allocated,
first, to the Class Y-4 Regular Interest to the extent of the Class Y-4
Principal Reduction Amount in reduction of the Uncertificated Principal
Balance of such Regular Interest and, second, the remainder, if any, of such
principal portion of such Realized Losses shall be allocated to the Class Z-4
Regular Interest in reduction of the Uncertificated Principal Balance
thereof. For any Distribution Date, reductions in the Uncertificated
Principal Balances of the Class Y and Class Z Regular Interests 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.
REMIC II Available Distribution Amount: The Available
Distribution Amount for Loan Group 5.
REMIC II Distribution Amount: For any Distribution Date, the
REMIC II Available Distribution Amount shall be deemed distributed to
REMIC IV, as the holder of the REMIC II Regular Interests, and to Holders of
the Class AR-L Certificates in respect of Component II thereof, pursuant to
Section 4.01(IV)(a)(ii), in the following amounts and priority:
(a) first, to the REMIC II Regular Interests LT1, LT2, LT3 and
LT4, pro rata, in an amount equal to (A) their Uncertificated Accrued
Interest for such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates; and
(b) second:
(i) to the REMIC II Regular Interests LT2, LT3 and LT4,
their respective Principal Distribution Amounts;
(ii) to the REMIC II Regular Interest LT1 its Principal
Distribution Amount;
(iii) any remainder to the REMIC II Regular Interest LT1,
until the Uncertificated Principal Balance thereof is reduced to zero;
(iv) any remainder to the REMIC II Regular Interests LT2,
LT3 and LT4, pro rata, according to their respective Uncertificated
Principal Balances as reduced by the distributions made pursuant to (i)
above, until their respective Uncertificated Principal Balances are
reduced to zero; and
(v) any remaining amounts to the Holders of the
Class AR-L Certificates in respect of Component II thereof;
(c) To the extent of the REMIC II Available Distribution
Amounts for such Distribution Date remaining after payment of the amounts
pursuant to paragraphs (a) and (b) of this definition of "REMIC II
Distribution Amount" as follows:
(i) first, to the REMIC II Regular Interests LT1, LT2,
LT3 and LT4, pro rata, to the extent of any Realized Losses allocated
to such Regular Interests on such Distribution Date or any prior
Distribution Date and not previously reimbursed pursuant to this
paragraph; provided, however, that any amounts distributed pursuant to
this paragraph (c)(i) of this definition of "REMIC II Distribution
Amount" shall not cause a reduction in the Uncertificated Principal
Balance of any of the REMIC II Regular Interests LT1, LT2, LT3 and LT4;
and
(ii) second, to the Class AR-L Certificates in respect of
Component II thereof, any remaining amount.
REMIC II Principal Reduction Amounts: For any Distribution Date,
the amounts by which the principal balances of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4, respectively, will be reduced on such Distribution
Date by the allocation of Realized Losses and the distribution of principal,
determined as follows:
For purposes of the succeeding formulas the following symbols shall
have the meanings set forth below:
Y1 = the aggregate principal balance of the REMIC II Regular Interests
LT1 after distributions on the prior Distribution Date.
Y2 = the principal balance of the REMIC II Regular Interest LT2 after
distributions on the prior Distribution Date.
Y3 = the principal balance of the REMIC II Regular Interest LT3 after
distributions on the prior Distribution Date.
Y4 = the principal balance of the REMIC II Regular Interest LT4 after
distributions on the prior Distribution Date (note: Y3 = Y4).
ΔY1 = the combined REMIC II Regular Interests LT1 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.
P0 = the aggregate principal balance of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of Realized
Losses on the prior Distribution Date.
P1 = the aggregate principal balance of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of Realized
Losses to be made on such Distribution Date.
ΔP = P0 - P1 = the aggregate of the REMIC II Regular Interests LT1,
LT2, LT3 and LT4 Principal Reduction Amounts.
= the aggregate of the principal portions of Realized Losses
to be allocated to, and the principal distributions to be made on, the
Group I Certificates on such Distribution Date (including distributions of
accrued and unpaid interest on the Class SB-I Certificates for prior
Distribution Dates).
R0 = the Group 5 Net WAC Rate (stated as a monthly rate) after giving
effect to amounts distributed and Realized Losses allocated on the prior
Distribution Date.
R1 = the Group 5 Net WAC Rate (stated as a monthly rate) after giving
effect to amounts to be distributed and Realized Losses to be allocated on
such Distribution Date.
α = (Y2 + Y3)/P0. The initial value of α on the Closing Date for use
on the first Distribution Date shall be 0.0001.
γ0 = the lesser of (A) the sum for all Classes of Group 5 LIBOR
Certificates of the product for each Class of (i) the monthly interest rate
(as limited by the Net Funds Cap, if applicable) for such Class applicable
for distributions to be made on such Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the
allocation of Realized Losses on the prior Distribution Date and (B) R0*P0.
γ1 = the lesser of (A) the sum for all Classes of Group 5 Certificates
of the product for each Class of (i) the monthly interest rate (as limited by
the Net Funds Cap, if applicable) for such Class applicable for distributions
to be made on the next succeeding Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Class after distributions and the
allocation of Realized Losses to be made on such Distribution Date and (B)
R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4;
ΔY2 = (α/2){( γ0R1 - γ1R0)/R0R1};
ΔY3 = αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative numbers.
Otherwise:
(1) If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = α{γ1R0P0 - γ0R1P1}/{γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
(2) If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = α{γ1R0P0 - γ0R1P1}/{2R1R0P1 - γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
The Principal Reduction Amount ΔY1 shall be allocated to the REMIC II Regular
Interest LT1.
REMIC II Realized Losses: Realized Losses on the Group 5
Mortgage Loans for the related Collection Period shall be allocated to the
REMIC II Regular Interests LT1, LT2, LT3 and LT4, in reduction of the
principal balances thereof and interest accrued thereon, as follows: (i) the
interest portion of Realized Losses, if any, shall be allocated pro rata to
accrued interest on the REMIC II Regular Interests LT1, LT2, LT3 and LT4, to
the extent of such accrued interest, and (ii) any remaining interest portions
of Realized Losses and any principal portions of Realized Losses shall be
treated as principal portions of Realized Losses and allocated (i) to the
REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II
Regular Interest LT4, pro rata according to their respective Principal
Reduction Amounts, provided that such allocation to each of the REMIC II
Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4 shall not exceed their respective Principal Reduction Amounts,
and (ii) any Realized Losses not allocated to any of the REMIC II Regular
Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular Interest LT4
pursuant to the provisos of clause (i) above shall be allocated to the
REMIC II Regular Interest LT1, until the principal balance thereof shall are
reduced to zero. Any Realized Losses on the Group 5 Mortgage Loans remaining
after the allocations made in the preceding sentences shall be allocated
among the Class LT2, Class LT3 and Class LT4 REMIC II Regular Interests
pro-rata according to their respective principal balances as reduced by the
allocations in the preceding sentence until such principal balances shall are
reduced to zero.
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 III Available Distribution Amount: The Available
Distribution Amount for Loan Group 6.
REMIC III Distribution Amount: For any Distribution Date, the
REMIC III Available Distribution Amount shall be deemed distributed to
REMIC IV, as the holder of the REMIC III Regular Interests, and to Holders of
the Class AR-L Certificates in respect of Component III thereof, pursuant to
Section 4.01(IV)(a)(iii), in an amount equal to, in each case, the amount
distributed to the Related Certificates pursuant to Section 4.01(III), with
such amount allocated among Uncertificated Accrued Interest thereon and
Uncertificated Principal Balance thereof in the same manner and to the same
extent that the payment to such Related Certificates is allocated to interest
and principal thereof (in determining the Uncertificated Principal Balance of
any Class of REMIC III Regular Interests to which distributions are made
pursuant to this definition of "REMIC III Distribution Amount," Recoveries
applied to increase the Certificate Principal Balance of any Related
Certificates shall be deemed to have also increased the Uncertificated
Principal Balance of such REMIC III Regular Interest) and any remaining
amount shall be distributed to Holders of the Class AR-L Certificates in
respect of Component III thereof.
REMIC III Realized Losses: For any Distribution Date, Realized
Losses on the Group 6 Mortgage Loans for the related Collection Period shall
be allocated to the REMIC III Regular Interests to the extent that such
Realized Losses are allocated to the Related Class or Classes of
Certificates. Realized Losses so allocated shall be deemed to be applied to
reduce the principal balance of, or accrued interest on, such REMIC III
Regular Interest to the same extent that they reduced the principal balance
of, or accrued interest on, the Related Classes of Certificates.
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.
REO Disposition: The final sale by Xxxxx Fargo, in its capacity
as Servicer, of any REO Property.
REO Disposition Fee: With respect to each REO Disposition, the
greater of (i) $1,200 or (ii) one percent (1%) of the final sales price of
such REO Disposition; provided, however, that any REO Disposition Fee shall
be payable solely to the extent that the amount of such REO Disposition Fee
is offset by an equivalent reduction in the real estate commission charged in
connection with the sale of the related REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Non-Designated
Mortgage Loan, any insurance policy that is required to be maintained from
time to time under this Agreement in respect of such Mortgage Loan or the
related Mortgaged Property.
Residual Certificates: The Class AR and Class AR-L Certificates.
Responsible Officer: When used with respect to the Trust
Administrator, shall mean any officer within the corporate trust department
of the Trust Administrator, including any Assistant Vice President, the
Secretary, any Vice President, Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Trust Officer or any other officer of the Trust
Administrator customarily performing functions similar to those performed by
any of the above designated officers and any officer within the Corporate
Trust Department having direct responsibility for the administration of this
Agreement. When used with respect to the Trustee, shall mean any officer
within the Corporate Trust Department having direct responsibility for the
administration of this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
Rolling Three Month Delinquency Rate: For any Distribution Date
will be the fraction, expressed as a percentage, equal to the average of the
Delinquency Rates for each of the three (or one and two, in the case of the
first and second Distribution Dates) immediately preceding months.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time
to time.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such
Mortgage Loan pursuant to the terms of the related Mortgage Note.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the originator
of the Cooperative Loan in the related Cooperative Shares.
Seller: DLJMC or WMB, as applicable.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: The Group 1 Senior Liquidation
Amount, the Group 2 Senior Liquidation Amount, the Group 3 Senior Liquidation
Amount, Group 4 Senior Liquidation Amount or Group 6 Senior Liquidation
Amount, as applicable.
Senior Percentage: The Group 1 Senior Percentage, Group 2 Senior
Percentage, Group 3 Senior Percentage, Group 4 Senior Percentage or Group 6
Senior Percentage, as applicable.
Senior Prepayment Percentage: The Senior Prepayment Percentage
for any Distribution Date occurring during the seven years beginning on the
first Distribution Date for each of Loan Group 1, Loan Group 2, Loan Group 3
and Loan Group 4, and during the ten years beginning on the first
Distribution Date for each of Loan Group 6, will equal 100%. The Senior
Prepayment Percentage for any Distribution Date occurring on or after the
seventh or tenth anniversary, as applicable, of the first Distribution Date
for each such Loan Group will be as follows: for any Distribution Date in
the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinate Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior
Percentage plus 60% of the related Subordinate Percentage for such
Distribution Date; for any Distribution Date in the third year thereafter,
the related Senior Percentage plus 40% of the related Subordinate Percentage
for such Distribution Date; for any Distribution Date in the fourth year
thereafter, the related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and for any Distribution Date after
the fourth year thereafter, the related Senior Percentage for such
Distribution Date.
Notwithstanding the foregoing, on any Distribution Date and with
respect to Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group 4 or Loan
Group 6, as applicable, if the related Senior Percentage exceeds the initial
related Senior Percentage, the Senior Prepayment Percentage for each
Group for that Distribution Date will equal 100%, (ii) if on or before the
Distribution Date in September 2008, the Class C-B Percentage or Class 6-B
Percentage, as applicable, is greater than or equal to twice the Class C-B
Percentage or Class 6-B Percentage, as applicable, as of the Closing Date, in
which case the Senior Prepayment Percentage for each Group will equal the
related Senior Percentage, plus 50% of the related Subordinate Percentage for
that Distribution Date, and if after the Distribution Date in September 2008,
the Class C-B Percentage is greater than or equal to twice the Class C-B
Percentage as of the Closing Date, then the Senior Prepayment Percentage for
each such Group for such Distribution Date will equal the related Senior
Percentage).
Notwithstanding the foregoing, the Senior Prepayment Percentage
for any of Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group 4 or Loan
Group 6, as applicable, shall equal 100% for any Distribution Date as to
which (i) the outstanding principal balance of the Mortgage Loans in the
related Loan Group, delinquent 60 days or more (including all REO Properties
and Mortgage Loans in foreclosure) (averaged over the preceding six month
period), as a percentage of the related aggregate Subordinate
Component Balance as of such Distribution Date is equal to or greater than
50% or (ii) cumulative Realized Losses for the Mortgage Loans in the related
Loan Group exceed (a) with respect to any Distribution Date prior to the
third anniversary of the first Distribution Date, 20% of the related
aggregate Subordinate Component Balance as of the Closing Date (the "Original
Subordinate Principal Balance"), (b) with respect to any Distribution Date on
or after the third anniversary but prior to the eighth anniversary of the
first Distribution Date, 30% of the related Original Subordinate Principal
Balance, (c) with respect to any Distribution Date on or after the eighth
anniversary but prior to the ninth anniversary of the first Distribution
Date, 35% of the related Original Subordinate Principal Balance, (d) with
respect to any Distribution Date on or after the ninth anniversary but prior
to the tenth anniversary of the first Distribution Date, 40% of the related
Original Subordinate Principal Balance, (e) with respect to any Distribution
Date on or after the tenth anniversary but prior to the eleventh anniversary
of the first Distribution Date, 45% of the related Original Subordinate
Principal Balance and (f) with respect to any Distribution Date on or after
the eleventh anniversary of the first Distribution Date, 50% of the Original
Subordinate Principal Balance.
With respect to Loan Groups 1-4, if the Senior Prepayment
Percentage for one Loan Group equals 100% due to the limitations set forth
above, then the Senior Prepayment Percentage for the other Loan Groups will
equal 100%.
If on any Distribution Date the allocation to a Class of Senior
Certificates then entitled to distributions of Principal Prepayments and
other amounts in the percentage required above would reduce the outstanding
Class Principal Balance of that Class below zero, the distribution to that
Class of Senior Certificates of the Senior Prepayment Percentage of those
amounts for such Distribution Date shall be limited to the percentage
necessary to reduce the related Class Principal Balance to zero.
Senior Principal Distribution Amount: The Group 1 Senior
Principal Distribution Amount, Group 2 Senior Principal Distribution Amount,
Group 3 Senior Principal Distribution Amount, Group 4 Senior Principal
Distribution Amount or Group 6 Senior Principal Distribution Amount, as
applicable.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage
Loan not required to be included in the Trustee Mortgage File and held by the
Master Servicer or the related Servicer or any Subservicer.
Servicers: WMB, SPS, Xxxxx Fargo and, in each case, any
successor in interest thereto or any successor servicer appointed as provided
herein.
Servicing Advance: With respect to the Non-Designated Mortgage
Loans, all customary, reasonable and necessary "out of pocket" costs and
expenses incurred prior to, on or after the Cut-off Date in the performance
by a Servicer of its servicing obligations related to such Mortgage Loans,
including, but not limited to, the cost (including reasonable attorneys' fees
and disbursements) of (i) the preservation, restoration and protection of a
Mortgaged Property, (ii) compliance with the obligations under Section 3.11
and any enforcement or judicial proceedings, including foreclosures,
(iii) the management and liquidation of any REO Property (including default
management and similar services, appraisal services and real estate broker
services), (iv) any expenses incurred by a Servicer in connection with
obtaining an environmental inspection or review pursuant to the second
paragraph of Section 3.11(a), (v) compliance with the obligations under
Section 3.09, (vi) locating any documents missing from the Trustee's Mortgage
File and (vii) obtaining broker price opinions. In no event will any
Servicer be required to make any Servicing Advance which would constitute a
Nonrecoverable Advance.
With respect to the Designated Mortgage Loans, Servicing Advance
shall have the meaning assigned to such term in the related Designated
Servicing Agreement.
Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Servicing Fee Rate on
the Stated Principal Balance of such Mortgage Loan as of the Due Date in the
month of such Distribution Date (prior to giving effect to any Scheduled
Payments due on such Mortgage Loan on such Due Date), subject to reduction as
provided in Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate
set forth on the Mortgage Loan Schedule.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage
Loans whose name and specimen signature appear on a list of servicing
officers furnished to the Trustee and the Trust Administrator by a Servicer
on the Closing Date pursuant to this Agreement, as such list may from time to
time be amended and delivered to the Trustee and Trust Administrator.
Special Hazard Loss: A Realized Loss (or portion thereof) with
respect to a Mortgage Loan arising from any direct physical loss or damage to
a Mortgaged Property which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except: (i) wear
and tear, deterioration, rust or corrosion, mold, wet or dry rot, inherent
vice or latent defect, animals, birds, vermin, insects; (ii) settling,
subsidence, cracking, shrinkage, bulging or expansion of pavements,
foundations, walls, floors, roofs or ceilings; (iii) errors in design, faulty
workmanship or faulty materials, unless the collapse of the property or part
thereof ensues and then only for the ensuing loss; (iv) nuclear or chemical
reaction or nuclear radiation or radioactive or chemical contamination, all
whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote; (v) hostile or warlike action in time of peace
or war, including action in hindering, combating or defending against an
actual, impending or expected attack (a) by any government of sovereign
power, de jure or de facto, or by any authority maintaining or using
military, naval or air forces, (b) by military, naval or air forces, or
(c) by an agent of any such government, power, authority or forces; (vi) any
weapon of war employing atomic fission or radioactive force whether in time
of peace or war; or (vii) insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in hindering,
combating or defending against such occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government or
public authority, or risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to Loan Groups
1-4 and Loan Group 6, as of the Closing Date, $7,086,160 with respect to Loan
Groups 1-4 and $4,558,000 with respect to Loan Group 6, subject in each case
to reduction from time to time, to be an amount equal on any Distribution
Date to the lesser of (a) the greatest of (i) with respect to Loan Groups
1-4, 1% of the Aggregate Groups 1-4 Collateral Balance and with respect to
Loan Group 6, 1% of the Aggregate Loan Group Balance for Loan Group 6,
(ii) twice the principal balance of the largest Mortgage Loan in Loan
Group 1, Loan Group 2, Loan Group 3 and Loan Group 4 or Loan Group 6, as
applicable, and (iii) the aggregate Stated Principal Balances of the Group 1,
Group 2, Group 3 or Group 4 Mortgage Loans or Group 6 Mortgage Loans, as
applicable, secured by Mortgaged Properties located in the single California
postal zip code area having the highest aggregate principal balance of any
such zip code area and (b) the related Special Hazard Loss Coverage Amount as
of the Closing Date less the amount, if any, of losses attributable to
Special Hazard Losses allocated to the related Class B Certificates since the
Closing Date. All Stated Principal Balances for the purpose of this
definition will be calculated as of the first day of the month preceding such
Distribution Date after giving effect to scheduled installments of principal
and interest on the Mortgage Loans then due, whether or not paid. Each
Special Hazard Loss Coverage Amount may be reduced below the amount set forth
above for any Distribution Date with the consent of the Rating Agencies as
evidenced by a letter of each Rating Agency to the Trust Administrator to the
effect that any such reduction will not result in a downgrading of the
current ratings assigned to such Classes of Certificates rated by it.
Special Hazard Loss Coverage Termination Date: With respect to
Loan Groups 1-4 and Loan Group 6, the date on which the related Special
Hazard Loss Coverage Amount is reduced to zero.
Special Servicer: SPS and its successors and permitted assigns.
Special Serviced Mortgage Loan: The Mortgage Loans for which the
Special Servicer acts as servicer pursuant to Section 3.19.
SPS: Select Portfolio Servicing, Inc., a Utah corporation, and
its successors and assigns.
SPS Mortgage Loans: Any SPS Serviced Mortgage Loans for which
SPS has not entered into a subservicing arrangement for such Mortgage Loan
pursuant to Section 3.02 hereof.
SPS Serviced Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which SPS is the applicable Servicer
or the Special Servicer.
Standard Hazard Policy: Each standard hazard insurance policy or
replacement therefore referred to in Section 3.09.
Startup Day: The Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan and
Due Date, the unpaid principal balance of such Mortgage Loan as of such Due
Date as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any
moratorium or similar waiver or grace period) after giving effect to any
previous Curtailments and Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in September 2008 and (y) the first Distribution Date on
which the Group 5 Senior Enhancement Percentage (calculated for this purpose
after giving effect to payments or other recoveries in respect of the
Mortgage Loans in Loan Group 5 during the related Collection Period but
before giving effect to payments on the Group 5 Certificates on such
Distribution Date) is greater than or equal to 16.90%.
Stock Power: With respect to a Cooperative Loan, an assignment
of the stock certificate or an assignment of the Cooperative Shares issued by
the Cooperative Corporation.
Streamlined Mortgage Loan: A Mortgage Loan originated in
connection with the refinance of a mortgage loan pursuant to the related
Seller's streamlined documentation program then in effect.
Subordinate Certificates: As specified in the Preliminary
Statement.
Subordinate Component Balance: For any of Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4, as of any date of determination, the
Aggregate Loan Group Balance of such Loan Group as of such date of
determination, minus the sum of the then outstanding aggregate Class
Principal Balance of the related Classes of Class A Certificates.
Subordinate Liquidation Amount: For any Distribution Date and
any of Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group
6, the excess, if any, of the aggregate Liquidation Principal of all Mortgage
Loans in that Loan Group which became Liquidated Mortgage Loans during the
calendar month preceding the Distribution Date over the Group 1 Senior
Liquidation Amount, Group 2 Senior Liquidation Amount, Group 3 Senior
Liquidation Amount, Group 4 Senior Liquidation Amount or Group 6 Senior
Liquidation Amount, as applicable, for such Distribution Date.
Subordinate Percentage: With respect to any Distribution Date
and Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6,
the excess of 100% over the related Senior Percentage for that Distribution
Date.
Subordinate Prepayment Percentage: With respect to any
Distribution Date and with respect to Loan Group 1, Loan Group 2, Loan
Group 3, Loan Group 4 or Loan Group 6, 100% minus the related Senior
Prepayment Percentage for such Distribution Date; provided, however, that if
the aggregate Class Principal Balance of the Senior Certificates related to
such Loan Group is reduced to zero, then the Subordinate Prepayment
Percentage for such Loan Group will equal 100%.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, the sum of the following amounts for each of Loan Group 1,
Loan Group 2, Loan Group 3, Loan Group 4 or Loan Group 6: (i) the related
Subordinate Percentage of the related Principal Payment Amount, (ii) the
related Subordinate Prepayment Percentage of the related Principal Prepayment
Amount, and (iii) the related Subordinate Liquidation Amount; less the amount
of certain cross-collateralization payments as made pursuant to Section 4.07.
Subordination Level: With respect to any Distribution Date and
any Class of Class B Certificates, the percentage obtained by dividing the
sum of the Class Principal Balances of all Classes of related Class B
Certificates which are subordinate in right of payment to such Class by the
sum of the Class Principal Balances of (1) with respect to the Class C-B
Certificates, the Group 1, Group 2, Group 3 and Group 4 and Class C-B
Certificates, and (2) with respect to the Class 6-B Certificates, the Group 6
Certificates (other than the Class 6-X Certificates) in each case immediately
prior to such Distribution Date.
Subsequent Cut-off Date: With respect to any Subsequent Mortgage
Loan, the first day of the month on which such Mortgage Loan is transferred
to the Trust.
Subsequent Mortgage Loan: Any Mortgage Loan other than an
Initial Mortgage Loan conveyed to the Trust Fund pursuant to Section 2.01
hereof and to a Subsequent Transfer Agreement, which Mortgage Loan shall be
listed on the revised Mortgage Loan Schedule delivered pursuant to this
Agreement and on Schedule A to such Subsequent Transfer Agreement. When used
with respect to a single Subsequent Transfer Date, Subsequent Mortgage Loan
shall mean a Subsequent Mortgage Loan conveyed to the Trust on that
Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit R hereto, executed and delivered by and
among the Depositor, DLJMC and the Trustee.
Subsequent Transfer Date: For any Subsequent Transfer Agreement,
the date the related Subsequent Mortgage Loans are transferred to the Trust
pursuant to the related Subsequent Transfer Agreement.
Substitution Adjustment Amount: As defined in Section 2.03.
Subservicer: Any other entity with respect to any Non-Designated
Mortgage Loan under any Subservicing Agreement applicable to such Mortgage
Loan and any successors and assigns under such Subservicing Agreement.
Subservicing Agreement: Any servicing agreement between a
Servicer and a Subservicer pursuant to which a Servicer delegates any of its
servicing responsibilities with respect to any of the Non-Designated Mortgage
Loans.
Targeted Overcollateralization Amount: For any Distribution Date
prior to the Stepdown Date, 0.85% of the Aggregate Loan Group Balance for
Loan Group 5 as of the Initial Cut-off Date; with respect to any Distribution
Date on or after the Stepdown Date and with respect to which a Trigger Event
is not in effect, the greater of (a) 1.70% of the Aggregate Loan Group
Balance for Loan Group 5 for such Distribution Date, or (b) 0.50% of the
Aggregate Loan Group Balance for Loan Group 5 as of the Initial Cut-off Date;
with respect to any Distribution Date on or after the Stepdown Date with
respect to which a Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation § 1.860F 4(d) and
temporary Treasury regulation § 301.6231(a)(7)1T. Initially, the Tax Matters
Person shall be the Trust Administrator.
Telerate Page 3750: The display designated as page 3750 on
Bridge Telerate Service (or such other page as may replace page 3750 on that
service for the purpose of displaying London interbank offered rates of major
banks).
Terminating Auction Date: With respect to Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4, as defined in Section 11.01(d), with
respect to Loan Group 5, as defined in Section 11.01(e) and with respect to
Loan Group 6, as defined in Section 11.01(f).
Terminating Auction Purchaser: With respect to Loan Group 1,
Loan Group 2, Loan Group 3 and Loan Group 4, as defined in Section 11.01(d),
with respect to Loan Group 5, as defined in Section 11.01(e) and with respect
to Loan Group 6, as defined in Section 11.01(f).
Terminating Auction Sale: With respect to Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4, as defined in Section 11.01(d), with
respect to Loan Group 5, as defined in Section 11.01(e) and with respect to
Loan Group 6, as defined in Section 11.01(f).
Terminating Entity: The entity determined by the Trust
Administrator pursuant to Section 11.02 of this Agreement.
Transferring Servicer: As defined in Section 3.19 hereof.
Transferee Affidavit and Agreement: As defined in
Section 6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any Distribution
Date if either (i) the Rolling Three Month Delinquency Rate as of the last
day of the related Collection Period equals or exceeds 34.00% of the Group 5
Senior Enhancement Percentage for such Distribution Date or (ii) the
cumulative Realized Losses as a percentage of the Aggregate Loan Group
Balance for Loan Group 5 on the Closing Date for such Distribution Date is
greater than the percentage set forth in the following table:
----------------------------------------------------------------
Range of Distribution Dates Cumulative Loss Percentage
----------------------------------------------------------------
October 2008 - September 2009 1.00%*
October 2009 - September 2010 1.25%*
October 2010 - September 2011 1.50%*
October 2011 and thereafter 1.70%*
----------------------------------------------------------------
* The cumulative loss percentages set forth above are
applicable to the first Distribution Date in the
corresponding range of Distribution Dates. The cumulative
loss percentage for each succeeding Distribution Date in a
range increases incrementally by 1/12 of the positive
difference between the percentage applicable to the first
Distribution Date in that range and the percentage
applicable to the first Distribution Date in the succeeding
range.
Trust: The trust created pursuant to Section 2.01 this Agreement.
Trust Administrator: Xxxxx Fargo Bank, N.A., a national banking
association, not in its individual capacity, but solely in its capacity as
Trust Administrator for the benefit of the Certificateholders under this
Agreement, and any successor thereto, as provided herein.
Trust Administrator Fee: As specified in Section 10.05.
Trust Administrator Fee Rate: As to each Mortgage Loan, a per
annum rate equal to 0.00%.
Trust Collateral: With respect to Loan Group 1, Loan Group 2,
Loan Group 3 and Loan Group 4, as defined in Section 11.01(c)(i), with
respect to Loan Group 5, as defined in Section 11.01(c)(ii) and with respect
to Loan Group 6, as defined in Section 11.01(c)(iii).
Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans, including all interest and principal
received or receivable by the Depositor on or with respect to the Mortgage
Loans after the Cut-off Date, but not including payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date,
together with the Mortgage Files relating to the Mortgage Loans,
(b) REO Property, (c) the Collection Account, the Certificate Account, the
Prefunding Account, the Capitalized Interest Account, the Group 5 Interest
Rate Cap Account, the Group 6 Basis Risk Reserve Fund and all amounts
deposited therein pursuant to the applicable provisions of this Agreement,
(d) any insurance policies with respect to the Mortgage Loans, (e) the
Depositor's rights under the Assignment and Assumption Agreement, (f) the
Trust's rights under the Group 5 Interest Rate Cap Agreement and (g) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property.
Trust Receipt and Final Certification: As defined in
Section 2.02(a).
Trust Receipt and Initial Certification: As defined in
Section 2.02(a).
Trustee: U.S. Bank National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in
Section 2.01 hereof pertaining to a particular Mortgage Loan and any
additional documents required to be added to the Trustee Mortgage File
pursuant to this Agreement.
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 (to the extent not
covered by Compensating Interest Payments) relating to the Group 1, Group 2,
Group 3 and Group 4 Mortgage Loans for any Distribution Date shall be
allocated among the REMIC I 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 II Regular Interests for any Distribution
Date, any Prepayment Interest Shortfalls (to the extent not covered by
Compensating Interest Payments) relating to the Group 5 Mortgage Loans for
any Distribution Date shall be allocated among 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 (to the extent not covered by Compensating Interest
Payments) relating to the Group 6 Mortgage Loans for any Distribution Date
shall be allocated among the REMIC III Regular Interests, pro rata, based on,
and to the extent of, Uncertificated Accrued Interest, as calculated without
application of this sentence. Uncertificated Accrued Interest on the
REMIC IV Regular Interest 5-X-PO shall be zero. Uncertificated Accrued
Interest on the REMIC IV Regular Interest 5-X-IO for each Distribution Date
shall equal Accrued Certificate Interest for the Class 5-X Certificates.
Uncertificated Pass-Through Rate: For any REMIC I Regular
Interest, REMIC II Regular Interest or REMIC III Regular Interest, the per
annum rate set forth or calculated in the manner described in the Preliminary
Statement under "REMIC I," "REMIC II" or "REMIC III," respectively.
Uncertificated Principal Balance: The principal amount of any
REMIC I, REMIC II or REMIC III Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I, REMIC II and REMIC III Regular Interest shall equal the
amount set forth in the Preliminary Statement hereto as its Initial
Uncertificated Principal Balance under "REMIC I," "REMIC II" and "REMIC III"
respectively. On each Distribution Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest, REMIC II Regular Interest and REMIC III
Regular Interest shall be reduced, in the case of REMIC I Regular Interests,
by the sum of (i) the principal portion of Realized Losses allocated to the
REMIC I Regular Interests in accordance with the definition of REMIC I
Realized Losses and (ii) the amounts deemed distributed on each Distribution
Date in respect of principal on the REMIC I Regular Interests pursuant to
Section 4.01(IV)(a)(i), in the case of REMIC II Regular Interests, by the sum
of (i) the principal portion of Realized Losses allocated to the REMIC II
Regular Interests in accordance with the definition of REMIC II Realized
Losses and (ii) the amounts deemed distributed on each Distribution Date in
respect of principal on the REMIC II Regular Interests pursuant to
Section 4.01(IV)(a)(ii), and, in the case of REMIC III Regular Interests, by
the sum of (i) the principal portion of Realized Losses allocated to the
REMIC III Regular Interests in accordance with the definition of REMIC III
Realized Loss and (ii) the amounts deemed distributed on each Distribution
Date in respect of principal on the REMIC III Regular Interests pursuant to
Section 4.01(IV)(a)(iii).
Uncertificated Regular Interest: Any of the REMIC I Regular
Interests, REMIC II Regular Interests and REMIC III Regular Interests.
Undercollateralized Group: As defined in Section 4.07(b).
Underwriter's Exemption: Prohibited Transaction Exemption
2002-41, 67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of
Columbia, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States, any trust treated as a United States Person under Code
Section 7701(a)(30).
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this
Agreement, 98% of all Voting Rights shall be allocated among the Class A
Certificates (other than the Residual Certificates), Class M Certificates and
Class C-B Certificates. The portion of such 98% Voting Rights allocated to
each of the Class A Certificates (other than the Residual Certificates),
Class M Certificates and Class C-B Certificates shall be based on the
fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of each such Class then outstanding and the denominator of
which is the aggregate Class Principal Balance of all such Classes then
outstanding. At all times during the term of this Agreement, the Class 5-X
Certificates shall be allocated 1% of the Voting Rights. At all times during
the term of this Agreement, the Class 6-X Certificates shall be allocated 1%
of the Voting Rights. Voting Rights shall be allocated among the
Certificates within each Class in proportion to their respective outstanding
Class Principal Balances or Class Notional Amounts, as applicable. The
Class AR and Class AR-L Certificates shall have no Voting Rights.
Weighted Average Pass-Through Rate: With respect to any
Distribution Date and Loan Group a rate equal to the weighted average of the
Net Mortgage Rates on the Mortgage Loans in such Loan Group as of the second
preceding Due Date (excluding any such Mortgage Loans that were subject to a
Payoff, the principal of which was distributed on the Distribution Date
preceding the current Distribution Date) after giving effect to payments due
on such Due Date, whether or not received, weighted on the basis of the
Stated Principal Balances as of such date.
Xxxxx Fargo: Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Custodial Agreement: That certain Custodial
Agreement dated as of September 1, 2005 among Xxxxx Fargo, as custodian, the
Trustee and the Trust Administrator.
Xxxxx Fargo Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which Xxxxx Fargo is
the applicable Servicer.
WMB: Washington Mutual Bank, and its successors and assigns.
WMB Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which WMB is the applicable Seller.
WMB Serviced Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule, for which WMB is the applicable Servicer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Trust Fund.
(a) The Depositor does hereby establish the Adjustable Rate Mortgage Trust
2005-10 (the "Trust") and sells, transfers, assigns, delivers, sets over and
otherwise conveys to the Trustee in trust for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Initial Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Initial Mortgage Loans after the Initial
Cut-off Date and any Assigned Prepayment Premiums with respect thereto, but
not including payments of principal and interest due and payable on the
Initial Mortgage Loans on or before the Initial Cut-off Date, together with
the Mortgage Files relating to the Initial Mortgage Loans, (b) REO Property,
(c) the Collection Account, the Certificate Account, the Prefunding Account,
the Capitalized Interest Account, the Group 5 Interest Rate Cap Account, the
Group 6 Basis Risk Reserve Fund and all amounts deposited therein pursuant to
the applicable provisions of this Agreement, (d) any insurance policies with
respect to the Initial Mortgage Loans, (e) the Depositor's rights under the
Assignment and Assumption Agreement and (f) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other liquid
property.
(b) In connection with the transfer and assignment set forth in clause
(a) above, the Depositor has delivered or caused to be delivered to a
Custodian for the benefit of the Certificateholders, the documents and
instruments with respect to each Initial Mortgage Loan as assigned:
(i) (A) the original Mortgage Note bearing all intervening endorsements and
including any riders to the Mortgage Note, endorsed "Pay to the order of
________________, without recourse" and signed in the name of the last named
endorsee by an authorized officer or (B) with respect to any Lost Mortgage
Note, a lost note affidavit and indemnity from the related Seller stating
that the original Mortgage Note was lost or destroyed, (together with a copy
of such Mortgage Note, if available) and indemnifying the Trust Fund against
any loss, cost or liability resulting from the failure to deliver the
original Mortgage Note;
(ii) the original of any guarantee executed in connection with the Mortgage
Note (if any);
(iii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original
Mortgage, with evidence of recording thereon, or copies certified by the
related recording office or if the original Mortgage has not yet been
returned from the recording office, a copy certified by or on behalf of the
related Seller indicating that such Mortgage has been delivered for recording
(the return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller) and in the case of each MERS Mortgage
Loan, the original Mortgage, noting the presence of the MIN of the related
Mortgage Loan and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM
Loan at origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, (or, if an original of any of these documents has not
been returned from the recording office, a copy thereof certified by or on
behalf of the related Seller, the original to be delivered to the related
Seller forthwith after return from such recording office) with evidence of
recording thereon, if any;
(v) for each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment of Mortgage as appropriate, in recordable form, for each Mortgage
Loan from the last assignee assigned in blank;
(vi) for each Mortgage Loan that was not a MERS Mortgage Loan at its
origination, the originals of any intervening recorded Assignments of
Mortgage, showing a complete chain of assignment from origination to the last
assignee, including warehousing assignments, with evidence of recording
thereon (or, if an original intervening Assignment of Mortgage has not been
returned from the recording office, a copy thereof certified by or on behalf
of the related Seller, the original to be delivered to a Custodian forthwith
after return from such recording office);
(vii) the original mortgage title insurance policy, or copy of title
commitment (or in appropriate jurisdictions, attorney's opinion of title and
abstract of title); and
(viii) with respect to a Cooperative Loan, if any, the originals of the
following documents or instruments:
(A) the Cooperative Shares, together with the Stock Power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease and the Assignment of Proprietary Lease
to the originator of the Cooperative Loan;
(D) the executed Recognition Agreement;
(E) Copies of the original UCC financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured
party, each with evidence of recording thereof, evidencing the interest of
the originator under the Security Agreement and the Assignment of Proprietary
Lease;
(F) Copies of the filed UCC assignments or amendments of the security
interest referenced in clause (E) above showing an unbroken chain of title
from the originator to the Trust, each with evidence of recording thereof,
evidencing the interest of the assignee under the Security Agreement and the
Assignment of Proprietary Lease;
(G) An executed assignment of the interest of the originator in the
Security Agreement, the Assignment of Proprietary Lease and the Recognition
Agreement, showing an unbroken chain of title from the originator to the
Trust; and
(H) For any Cooperative Loan that has been modified or amended, the
original instrument or instruments effecting such modification or amendment.
In addition, in connection with the assignment of any MERS
Mortgage Loan, the related Seller agrees that it will cause, at the related
Seller's expense, the MERS® System to indicate that such Mortgage Loans have
been assigned by the related Seller to the Trustee in accordance with this
Agreement (and any Subsequent Transfer Agreement) for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased or substituted in accordance with this Agreement) the
information required by the MERS® System to (a) identify the Trustee and
(b) identify the series of the Certificates issued in connection with such
Mortgage Loans. The Trustee shall confirm, or cause the related Custodian to
confirm, on the Final Certification of the related Custodian that such
assignment has occurred. Each Seller further agrees that it will not, and
will not permit a Servicer to, and each related Servicer agrees that it will
not, alter the information referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased or substituted in accordance with the terms of
this Agreement.
In the event the Depositor delivers to a Custodian certified
copies of any document or instrument set forth in 2.01(b) because of a delay
caused by the public recording office in returning any recorded document, the
Depositor shall deliver or cause to be delivered to such Custodian, within 60
days of the Closing Date or the related Subsequent Transfer Date, as
applicable, an Officer's Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to
such Custodian due solely to a delay caused by the public recording office,
and (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the
Depositor cannot deliver (a) for a Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, (b) all interim recorded assignments or
(c) the lender's title policy (together with all riders thereto) satisfying
the requirements set forth above, concurrently with the execution and
delivery hereof because such document or documents have not been returned
from the applicable public recording office in the case of clause (a) or
(b) above, or because the title policy has not been delivered to the related
Seller or the Depositor by the applicable title insurer in the case of clause
(c) above, the Depositor shall promptly deliver to the related Custodian, in
the case of clause (a) or (b) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office and, in the case
of clause (c) above, any title policy upon receipt from the applicable title
insurer.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, DLJMC
shall, at its expense, (i) affix or cause to be affixed the Trustee's name to
each Assignment of Mortgage, as the assignee thereof, (ii) cause such
assignment to be in proper form for recording in the appropriate public
office for real property records within thirty (30) days after receipt
thereof and (iii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to
the Trustee, except that, with respect to any assignment of a Mortgage as to
which DLJMC has not received the information required to prepare such
assignment in recordable form, DLJMC's obligation to do so and to deliver the
same for such recording shall be as soon as practicable after receipt of such
information and in any event within thirty (30) days after the receipt
thereof, and DLJMC need not cause to be recorded any assignment which relates
to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced
by an Opinion of Counsel delivered by the Depositor (at the Depositor's
expense) to the Trustee, the Trust Administrator and DLJMC, acceptable to the
Rating Agencies, the recordation of such assignment is not necessary to
protect the Trustee's and the Certificateholders' interest in the related
Mortgage Loan.
If any original Mortgage Note referred to in
Section 2.01(b)(i) above cannot be located, the obligations of the Depositor
to deliver such documents shall be deemed to be satisfied upon delivery to
the related Custodian of a photocopy of such Mortgage Note, if available,
with a lost note affidavit and indemnity. If any of the original Mortgage
Notes for which a lost note affidavit and indemnity was delivered to a
Custodian is subsequently located, such original Mortgage Note shall be
delivered to such Custodian within three (3) Business Days.
(c) The Trustee and the Trust Administrator are authorized to enter into
one or more Custodial Agreements, at the direction of the Depositor, for the
purpose of having a Custodian maintain custody of the documents and
instruments referred to in this Section 2.01, and any documents delivered
thereunder shall be delivered to such Custodian and any Officer's
Certificates delivered with respect thereto shall be delivered to the
Trustee, the Trust Administrator and such Custodian.
(d) It is the express intent of the parties to this Agreement that the
conveyance of the Mortgage Loans by the Depositor to the Trustee as provided
in this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by
the Depositor to the Trustee. It is, further, not the intention of the
parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be
the property of the Depositor, or if any for any other reason this Agreement
is held or deemed to create a security interest in the Mortgage Loans then
(a) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and
to (1) the Mortgage Loans listed in the Mortgage Loan Schedule, including all
interest and principal received or receivable by the Depositor on or with
respect to the Mortgage Loans after the related Cut-off Date and any Assigned
Prepayment Premiums with respect thereto, but not including payments of
principal and interest due and payable on the Initial Mortgage Loans on or
before the related Cut-off Date, together with the Mortgage Files relating to
the Mortgage Loans, (2) REO Property, (3) the Collection Account, the
Certificate Account, the Prefunding Account, the Capitalized Interest
Account, the Group 5 Interest Rate Cap Account, the Group 6 Basis Risk
Reserve Fund and all amounts deposited therein pursuant to the applicable
provisions of this Agreement, (4) any insurance policies with respect to the
Mortgage Loans, (5) the Depositor's rights under the Assignment and
Assumption Agreement and (6) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property;
(c) the possession by the Trustee or any Custodian of such items of property
and such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "in possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-313 of the New York 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 Trustee
for the benefit of the Certificateholders for the purpose of perfecting such
security interest under applicable law (except that nothing in this clause
(d) shall cause any person to be deemed to be an agent of the Trustee for any
purpose other than for perfection of such security interests unless, and then
only to the extent, expressly appointed and authorized by the Trustee in
writing). The Depositor and the Trustee, upon directions from the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may
be 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 this Agreement.
(e) The Depositor hereby authorizes and directs the Trustee to (i) execute
the Group 5 Interest Rate Cap Agreement and (ii) to ratify, on behalf of the
Trust, the terms agreed to by the Depositor with respect to the Group 5
Interest Rate Cap Agreement. The Depositor shall pay or cause to be paid on
behalf of the Trust the payments owed to the Group 5 Interest Rate Cap
Counterparty as of the Closing Date pursuant to the terms of the Group 5
Interest Rate Cap Agreement.
(f) Upon one Business Day's prior written notice to the Trustee, the Trust
Administrator and the Rating Agencies, on any Business Day designated by the
Depositor during the Prefunding Period, the Depositor, DLJMC, the Trustee and
the Trust Administrator shall complete, execute and deliver a Subsequent
Transfer Agreement so long as each Rating Agency has provided notice that the
execution and delivery of such Subsequent Transfer Agreement will not result
in a reduction or withdrawal of the ratings assigned to the Certificates on
the Closing Date.
The transfer of Subsequent Mortgage Loans and the other property
and rights relating to them on a Subsequent Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date satisfies the representations and warranties
applicable to it under this Agreement as of the applicable Subsequent
Transfer Date; provided, however, that with respect to a breach of a
representation and warranty with respect to a Subsequent Mortgage Loan,
the obligation under Section 2.03 of this Agreement of the related
Seller to cure, repurchase or replace such Subsequent Mortgage Loan
shall constitute the sole remedy against the related Seller respecting
such breach available to Certificateholders, the Depositor or the
Trustee;
(ii) the Rating Agencies shall have been provided with an
Opinion of Counsel or Opinions of Counsel (dated as of the Closing
Date), at the expense of the Depositor, with respect to the
characterization of the transfer of the Subsequent Mortgage Loans
conveyed on such Subsequent Transfer Date as a sale, to be delivered as
provided pursuant to Section 2.01(g);
(iii) the execution and delivery of such Subsequent
Transfer Agreement or conveyance of the related Subsequent Mortgage
Loans does not result in a reduction or withdrawal of any ratings
assigned to the Certificates on the Closing Date by the Rating Agencies;
(iv) no Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date was 30 or more days contractually delinquent
as of its subsequent Cut-off Date;
(v) the remaining term to stated maturity of such
Subsequent Mortgage Loan will not exceed 30 years;
(vi) the Depositor shall have deposited in the Collection
Account all principal and interest collected with respect to the
related Subsequent Mortgage Loans on or after the related Subsequent
Cut-off Date;
(vii) such Subsequent Mortgage Loan will not have a
Loan-to-Value Ratio greater than 100.0%;
(viii) such Subsequent Mortgage Loan will have a
principal balance not greater than $1,500,000;
(ix) no Subsequent Mortgage Loan shall have a final
maturity date after December 1, 2035;
(x) such Subsequent Mortgage Loan shall have a Net
Mortgage Rate equal to or greater than 3.50%;
(xi) such Subsequent Mortgage Loan shall have a first
payment date no later than January 1, 2006;
(xii) such Subsequent Mortgage Loan will be otherwise
acceptable to the Rating Agencies;
(xiii) no Subsequent Mortgage Loan will be subject to the
Homeownership and Equity Protection Act of 1994 or any comparable state
or local law;
(xiv) no such Subsequent Mortgage Loan will be a
balloon loan;
and
(xv) following the conveyance of the Subsequent Mortgage
Loans on such Subsequent Transfer Date, the characteristics of the
Mortgage Loans in Loan Group 5 will be as follows (calculated as of the
respective Cut-off Dates):
(A) a weighted average Mortgage Rate of
approximately 6.410% per annum;
(B) a weighted average remaining term to
stated maturity of approximately 355 months;
(C) a weighted average Loan-to-Value Ratio of
not more than 78.50%;
(D) no more than 20.0% of such Mortgage Loans
(by aggregate Cut-off Date Principal Balance) will be
concentrated in one state;
(E) no more than 35.0% of such Mortgage Loans
(by aggregate Cut-off Date Principal Balance) will relate to
non-owner occupied properties; and
(F) no more than 67.5% of such Mortgage Loans
(by aggregate Cut-off Date Principal Balance) will be interest
only Mortgage Loans.
(g) Upon (1) delivery to the Trustee and the Trust Administrator by the
Depositor of a revised Mortgage Loan Schedule reflecting the Subsequent
Mortgage Loans conveyed on such Subsequent Transfer Date and (2) delivery to
the Trustee and the Trust Administrator by the Depositor of an Officer's
Certificate confirming the satisfaction of each of the conditions precedent
set forth in Section 2.01(f), the Trust Administrator shall remit to the
Depositor the Aggregate Subsequent Transfer Amount related to the Subsequent
Mortgage Loans transferred by the Depositor on such Subsequent Transfer Date
from funds in the related Prefunding Account(s).
The Trustee and the Trust Administrator shall not be required to
investigate or otherwise verify compliance with the conditions set forth in
the preceding paragraph, except for its own receipt of documents specified
above, and shall be entitled to rely on the required Officer's Certificate.
(h) Except as specifically set forth in this Agreement or by separate
written agreement among the related parties hereto, the Depositor, the
Sellers, each Servicer and the Master Servicer agree that the provisions of
this Agreement shall supercede any provisions in any existing mortgage loan
purchase agreement or servicing agreement with respect to the Mortgage Loans
for which the Depositor, the Sellers, a Servicer or the Master Servicer may
be a party.
SECTION 2.02. Acceptance by the Trustee.
(a) Pursuant to the related Custodial Agreement, each Custodian agrees to
execute and deliver on the Closing Date to the Depositor, the Trustee and the
Trust Administrator a Trust Receipt and Initial Certification in the form
annexed hereto as Exhibit I-1. Based on its review and examination, and only
as to the documents identified in such Trust Receipt and Initial
Certification, each Custodian acknowledges that such documents appear regular
on their face and relate to such Initial Mortgage Loan. The Custodians 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 in the real estate records or that they are other
than what they purport to be on their face.
Pursuant to the related Custodial Agreement, not later than 90
days after the Closing Date, each Custodian shall deliver to the Depositor,
the Trustee and the Trust Administrator a Trust Receipt and Final
Certification in the form annexed hereto as Exhibit J, with any applicable
exceptions noted thereon.
Based solely upon the Trust Receipt and Initial Certification
received from the Custodians, and subject to the provisions of Section 2.01
and any exceptions noted on an exception report described in the next
paragraph below, the Trustee acknowledges receipt of the documents referred
to in Section 2.01 above and declares that it holds and will hold such
documents and the other documents delivered to it constituting the Mortgage
File, and that it holds or will hold all such assets and such other assets
included in the definition of the Trust Fund in trust for the exclusive use
and benefit of all present and future Certificateholders.
If, in the course of such review, a Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements
of Section 2.01, such Custodian shall list such as an exception in the Trust
Receipt and Final Certification pursuant to the related Custodial Agreement;
provided, however, that the Custodian shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates.
The related Seller shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if the
related Seller does not correct or cure such defect within such period and
such defect materially and adversely affects the interests of
Certificateholders in the related Mortgage Loan, the related Seller shall
either (a) substitute for the related Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) repurchase such
Mortgage Loan within 90 days from the date that the related Seller was
notified of such defect in writing at the Purchase Price of such Mortgage
Loan; or such longer period not to exceed 720 days from the Closing Date if
the substitution or repurchase of a Mortgage Loan pursuant to this provision
is required by reason of a delay in delivery of any documents by the
appropriate recording office or title insurer, as applicable; provided,
however, that the related Seller shall have no liability for recording any
Assignment of Mortgage in favor of the Trustee or for the Custodian's failure
to record such Assignment of Mortgage, and provided, further, that no Seller
shall be obligated to repurchase or cure any Mortgage Loan solely as a result
of the Custodian's failure to record such Assignment of Mortgage. The Trust
Administrator shall deliver or direct the Custodian to deliver to each Rating
Agency written notice within 270 days from the Closing Date indicating each
Mortgage Loan (a) for which a mortgage or assignment of mortgage required to
be recorded hereunder has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of such
Mortgage Loan. Such notice shall be delivered every 90 days thereafter until
the related Mortgage Loan is returned to the Custodian. Any such
substitution pursuant to clause (a) of the preceding sentence shall not be
effected prior to the delivery to the Trustee and the Trust Administrator of
(1) the Opinion of Counsel required by Section 2.05 hereof, and (2) a Request
for Release substantially in the form of Exhibit K. No substitution is
permitted to be made in any calendar month after the Determination Date for
such month. The Purchase Price for any such Mortgage Loan shall be deposited
by the related Seller in the related Collection Account on or prior to the
Business Day immediately preceding such Distribution Date in the month
following the month during which the related Seller became obligated
hereunder to repurchase or replace such Mortgage Loan and, upon receipt of
such deposit and certification with respect thereto in the form of Exhibit K
hereto, the Custodian shall release the related Mortgage File to the related
Seller and shall execute and deliver at such entity's request such
instruments of transfer or assignment prepared by such entity, in each case
without recourse, as shall be necessary to vest in such entity, or a
designee, the Trustee's interest in any Mortgage Loan released pursuant
hereto.
If pursuant to the preceding paragraph the related Seller
repurchases a Mortgage Loan that is a MERS Mortgage Loan, the related
Servicer shall, at the related Seller's expense, either (i) cause MERS to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the related Seller and shall cause such Mortgage to
be removed from registration on the MERS® System in accordance with MERS'
rules and regulations or (ii) cause MERS to designate on the MERS® System the
related Seller as the beneficial holder of such Mortgage Loan.
The Custodian shall execute and deliver prior to 10:00 a.m. (New
York time) on each Subsequent Transfer Date to the Depositor, the Trust
Administrator and each Servicer a Subsequent Certification in the form
annexed hereto as Exhibit I-2. Based on its review and examination, and only
as to the documents identified in such Subsequent Certification, the
Custodian shall acknowledge that such documents appear regular on their face
and relate to such Subsequent Mortgage Loan. None of the Trustee, the Trust
Administrator or the Custodian shall be under any 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 in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 90 days after the end of the Prefunding Period,
the Custodian shall deliver to the Depositor, the Trust Administrator, the
Sellers and each Servicer a Final Certification with respect to the
Subsequent Mortgage Loans in the form annexed hereto as Exhibit J with any
applicable exceptions noted thereon.
If, in the course of such review of the Mortgage Files relating
to the Subsequent Mortgage Loans, the Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements
of Section 2.01, the Custodian shall list such as an exception in the Final
Certification; provided, however, that the Custodian shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to
the assignee thereof under the mortgage to which the assignment relates. The
related Seller shall cure any such defect or repurchase or substitute for any
such Mortgage Loan in accordance with this Section 2.02(a).
(b) It is understood and agreed that the obligation of the Sellers to cure,
substitute for or to repurchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee, the Trust Administrator, the Depositor and
any Certificateholder against the Sellers.
SECTION 2.03. Representations and Warranties of the Sellers, Master
Servicer and Servicers.
(a) Each of DLJMC, in its capacity as a Seller, WMB, in its capacity as a
Seller and as a Servicer, Xxxxx Fargo, in its capacity as Master Servicer,
SPS, in its capacity as a Servicer and as Special Servicer, and Xxxxx Fargo,
in its capacity as a Servicer, hereby makes the representations and
warranties applicable to it set forth in Schedules IIA, IIB, IIC, IID or IIE,
as applicable hereto, and by this reference incorporated herein, to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date,
or if so specified therein, as of the Cut-off Date or such other date as may
be specified. In addition, WMB, in its capacity as a Servicer, SPS, in its
capacity as a Servicer and as Special Servicer, and Xxxxx Fargo, in its
capacity as a Servicer, makes the representations and warranties applicable
to it set forth in Schedules IIB, IID and IIE hereto, respectively, and by
this reference incorporated herein, to the Master Servicer as of the Closing
Date, or if so specified therein, as of the Cut-off Date or such other date
as may be specified.
(b) (i) DLJMC, in its capacity as a Seller, hereby makes the
representations and warranties set forth in Schedule IIIA as to the DLJMC
Mortgage Loans and by this reference incorporated herein, to the Depositor,
the Trustee and the Trust Administrator, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified and (ii) WMB, in its capacity as a Seller, hereby makes the
representations and warranties set forth in Schedule IIIB as to the WMB
Mortgage Loans and by this reference incorporated herein, to the Depositor,
the Trustee and the Trust Administrator, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to
Section 2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by the related Seller to the
Trust, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if such 90 day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans at the Purchase Price in the manner set forth below; provided,
however, that any such substitution pursuant to (i) above shall not be
effected prior to the delivery to the Trustee and the Trust Administrator of
the Opinion of Counsel required by Section 2.05 hereof, if any, and any such
substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee or the Trust Administrator of a Request
for Release substantially in the form of Exhibit K relating to the Deleted
Mortgage Loan and the Mortgage File for any such Qualified Substitute
Mortgage Loan. The related Seller shall promptly reimburse the Trustee, the
Trust Administrator, the Special Servicer and the related Servicer (if such
Servicer is not the Seller of such Mortgage Loan) for any actual out of
pocket expenses reasonably incurred by the Trustee, the Trust Administrator,
the Special Servicer and the related Servicer (if such Servicer is not the
Seller of such Mortgage Loan) in respect of enforcing the remedies for such
breach. With respect to any representation and warranties described in this
Section which are made to the best of a Seller's knowledge, if it is
discovered by any of the Depositor, the Master Servicer, the Sellers, any
Servicer, the Special Servicer, the Trustee or the Trust Administrator that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding the
related Seller's lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With respect to any Qualified Substitute Mortgage Loan or Loans,
the related Seller shall deliver to the Custodian for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by
Section 2.01(b), with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of substitution shall not be part of the Trust Fund and will be retained by
the related Seller on the next succeeding Distribution Date. For the month
of substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
related Seller shall be entitled to retain all amounts received in respect of
such Deleted Mortgage Loan. The related Seller shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and the related Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Servicers and the Trust
Administrator. Upon such substitution, the Qualified Substitute Mortgage
Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the related Seller shall be deemed to have made with respect to
such Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Collection Account of the amount required
to be deposited therein in connection with such substitution as described in
the following paragraph, the Trustee shall instruct the Custodian to release
the Mortgage File held for the benefit of the Certificateholders relating to
such Deleted Mortgage Loan to the related Seller and the Trustee shall
execute and deliver at the related Seller's direction such instruments of
transfer or assignment prepared by the related Seller, in each case without
recourse, as shall be necessary to vest title in the related Seller, or its
designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer shall determine the amount (if any) by which the aggregate principal
balance of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion
of the monthly payments due in the month of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to
the aggregate of any unreimbursed Advances, Servicing Advances and unpaid
Servicing Fees with respect to such Deleted Mortgage Loans shall be deposited
in the related Collection Account by the related Seller on or before the
Business Day immediately preceding the Distribution Date in the month
succeeding the calendar month during which the related Mortgage Loan became
required to be repurchased or replaced hereunder.
One or more mortgage loans may be substituted for one or more
Deleted Mortgage Loans. The determination of whether a mortgage loan is a
Qualified Substitute Mortgage Loan may be satisfied on an individual basis.
Alternatively, if more than one mortgage loan is to be substituted for one or
more Deleted Mortgage Loans, the characteristics of such mortgage loans and
Deleted Mortgage Loans shall be aggregated or calculated on a weighted
average basis, as applicable, in determining whether such mortgage loans are
Qualified Substitute Mortgage Loans.
In the event that a Seller shall be required to repurchase a
Mortgage Loan pursuant to this Agreement, the Purchase Price therefor shall
be deposited in the related Collection Account on or before the Business Day
immediately preceding the Distribution Date in the month following the month
during which such Seller became obligated hereunder to repurchase or replace
such Mortgage Loan and upon such deposit of the Purchase Price and receipt of
a Request for Release in the form of Exhibit K hereto, the Custodian shall
release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment
prepared by such Person, in each case without recourse, as shall be necessary
to transfer title from the Trustee. It is understood and agreed that the
obligation under this Agreement of any Person to cure, repurchase or
substitute any Mortgage Loan as to which a breach has occurred and is
continuing shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Trustee or
the Trust Administrator on their behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Mortgage Files to the
Trustee, the Trust Administrator or the Custodian for the benefit of the
Certificateholders.
(d) With respect to any Mortgage Loan which becomes delinquent in payment
by 90 days or more or is an REO Property, the related Seller shall have the
right to repurchase such Mortgage Loan from the Trust at a price equal to the
Purchase Price; provided, however, that (i) such Mortgage Loan is still 90
days or more delinquent or is an REO Property as of the date of such
repurchase and (ii) this repurchase option, if not theretofore exercised,
shall terminate on the date at the close of business on the 90th day after
the Mortgage Loan is 90 days delinquent or the Mortgage Loan becomes an
REO Property; provided, further, that in no event shall such repurchase take
place with respect to Mortgage Loans constituting more than 5% of the
aggregate Cut-off Date Principal Balance of the Mortgage Loans plus amounts
on deposit in the Prefunding Account as of the Closing Date. This repurchase
obligation, if not exercised, shall not be reinstated thereafter 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 the Mortgage Loan becomes 90
days or more delinquent or becomes an REO Property.
In the event that the related Seller exercises such option, the
Purchase Price therefor shall be deposited in the related Collection Account
and upon such deposit of the Purchase Price and receipt of a Request for
Release in the form of Exhibit K hereto, the Custodian shall release the
related Mortgage File held for the benefit of the Certificateholders to the
related Seller, and the Trustee shall execute and deliver at the related
Seller's direction such instruments of transfer or assignment prepared by the
related Seller, in each case without recourse, as shall be necessary to
transfer title from the Trustee to the related Seller.
SECTION 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the
Mortgage Files to the Custodian.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than ninety (90)
days after the Closing Date unless the related Seller delivers to the Trustee
and the Trust Administrator an Opinion of Counsel, which Opinion of Counsel
shall not be at the expense of any of the Trustee, the Trust Administrator or
the Trust Fund, addressed to the Trustee and the Trust Administrator, to the
effect that such substitution will not (i) result in the imposition of the
tax on "prohibited transactions" on the Trust Fund or contributions after the
Startup Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code,
respectively, or (ii) cause each REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding; provided,
however, that no Opinion of Counsel shall be required if (A) the substitution
occurs within two years of the Closing Date and (B) the substitution occurs
with respect to Mortgage Loans that are "defective" under the Code and the
related Seller delivers to the Trustee and the Trust Administrator an
Officer's Certificate substantially in the form of Exhibit W.
SECTION 2.06. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage
Loans together with the assignment to it of all other assets included in the
Trust Fund, receipt of which, subject to the provisions of Section 2.02(a),
is hereby acknowledged. Concurrently with such assignment and delivery and
in exchange therefor, the Trust Administrator, pursuant to the written
request of the Depositor executed by an officer of the Depositor, has
executed the Certificates and caused them to be authenticated and delivered
to or upon the order of the Depositor in authorized denominations which
evidence ownership of the Trust Fund. The rights of the Holders of such
Certificates to receive distributions from the Trust Fund and all ownership
interests of the Holders of the Certificates in such distributions shall be
as set forth in this Agreement.
SECTION 2.07. REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trust Administrator to
treat the Trust Fund as the number of separate REMICs specified in the
Preliminary Statement (each, a "REMIC") under the Code and, if necessary,
under applicable state law and apply such Preliminary Statement in
determining the rights of the Interests in REMICs thereby created. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return
(x) for the taxable year ending on the last day of the calendar year in which
the Certificates are issued and (y) for the taxable year ending on the last
day of the calendar year in which Certificates are first sold to a third
party. The Closing Date is hereby designated as the "startup day" of each
REMIC created hereunder within the meaning of Section 860G(a)(9) of the
Code. The "regular interests" (within the meaning of Section 860G of the
Code) in each REMIC shall consist of the regular interests with the terms set
forth for each REMIC in the Preliminary Statement and the Class AR and
Class AR-L Certificates shall represent the beneficial ownership of the
"residual interest" in each REMIC created hereunder. Neither the Depositor
nor the Trust Administrator nor the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any REMIC
other than as set forth in the Preliminary Statement.
(b) The Trust Administrator shall act as the "tax matters person" (within
the meaning of the REMIC Provisions) for each REMIC created hereunder, in the
manner provided under Treasury regulations section 1.860F 4(d) and temporary
Treasury regulations section 301.6231(a)(7)1T. In the event that for any
reason, the Trust Administrator is not recognized as the tax matters person
then the Trust Administrator shall act as agent for the Class AR and the
Class AR-L Certificateholder as tax matters person. By its acceptance of a
Class AR or Class AR-L Certificate, each Holder thereof shall have agreed to
such appointment and shall have consented to the appointment of the Trust
Administrator as its agent to act on behalf of each REMIC created hereunder
pursuant to the specific duties outlined herein.
(c) A Holder of the Class AR or Class AR-L Certificates, by the purchase of
such Certificates, shall be deemed to have agreed to timely pay, upon demand
by the Trust Administrator, the amount of any minimum California state
franchise taxes due with respect to each REMIC created hereunder under
Sections 23151(a) and 23153(a) of the California Revenue and Taxation Code.
Notwithstanding the foregoing, the Trust Administrator shall be authorized to
retain the amount of such tax from amounts otherwise distributable to such
Holder in the event such Holder does not promptly pay such amount upon demand
by the Trust Administrator. In the event that any other federal, state or
local tax is imposed, including without limitation taxes imposed on a
"prohibited transaction" of a REMIC as defined in Section 860F of the Code,
such tax shall be charged against amounts otherwise available for
distribution to the applicable Holder of a Class AR or Class AR-L Certificate
and then against amounts otherwise available for distribution to the Holders
of Regular Certificates in accordance with the provisions set forth in
Section 4.01. The Trust Administrator or the Trustee shall promptly deposit
in the Certificate Account any amount of "prohibited transaction" tax that
results from a breach of the Trust Administrator's or the Trustee's duties,
respectively, under this Agreement. The Master Servicer or the related
Servicer shall promptly deposit in the Certificate Account any amount of
"prohibited transaction" tax that results from a breach of the Master
Servicer's or such Servicer's duties, respectively, under this Agreement.
(d) The Trust Administrator shall act as attorney in fact and as the tax
matters person of each REMIC created hereunder and in such capacity the Trust
Administrator shall: (i) prepare, sign and file, or cause to be prepared,
signed and filed, federal and state tax returns using a calendar year as the
taxable year for each REMIC created hereunder when and as required by the
REMIC Provisions and other applicable federal income tax laws as the direct
representative of each such REMIC in compliance with the Code and shall
provide copies of such returns as required by the Code; (ii) make an
election, on behalf of each REMIC created hereunder, to be treated as a REMIC
on the federal tax return of such REMIC for its first taxable year, in
accordance with the REMIC Provisions; and (iii) prepare and forward, or cause
to be prepared and forwarded, to the Certificateholders and to any
governmental taxing authority all information reports as and when required to
be provided to them in accordance with the REMIC Provisions. The expenses of
preparing and filing such returns shall be borne by the Trust Administrator.
The Depositor, the Master Servicer and the related Servicer shall provide on
a prompt and timely basis to the Trust Administrator or its designee such
information with respect to each REMIC created hereunder as is in their
possession and reasonably required or requested by the Trust Administrator to
enable it to perform its obligations under this subsection.
In its capacity as attorney in fact and as the tax matters
person, the Trust Administrator shall also: (A) act on behalf of each REMIC
created hereunder in relation to any tax matter or controversy involving the
Trust Fund, (B) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto and (C) cause to be paid solely from the
sources provided herein the amount of any taxes imposed on each REMIC created
hereunder when and as the same shall be due and payable (but such obligation
shall not prevent the Trust Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Trust Administrator from withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings).
(e) The Trust Administrator shall provide (i) to any transferor of a
Class AR or Class AR-L Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class AR or Class AR-L
Certificate to any Person who is not a permitted transferee, (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each REMIC created hereunder.
(f) The Trustee, to the extent directed by the Trust Administrator, the
Depositor and the Holder of the Class AR or Class AR-L Certificates shall
take any action or cause the Trust Fund to take any action necessary to
create or maintain the status of each REMIC created hereunder as a REMIC
under the REMIC Provisions and shall assist each other as necessary to create
or maintain such status. Neither the Trustee, to the extent directed or (in
the case of a failure to act) not directed by the Trust Administrator, nor
the Holder of the Class AR or Class AR-L Certificates shall take any action,
cause the Trust Fund to take any action or fail to take (or fail to cause the
Trust Fund to take) any action that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of each REMIC
created hereunder as a REMIC or (ii) result in the imposition of a tax upon a
REMIC (including, but not limited to, the tax on prohibited transactions as
defined in Code Section 860F(a)(2) and the tax on prohibited contributions
set forth in Section 860G(d) of the Code) (either such event, an "Adverse
REMIC Event") unless the Trustee and the Trust Administrator have received an
Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such status or
result in the imposition of such a tax.
The Trustee and the Trust Administrator shall not take or fail to
take any action (whether or not authorized hereunder) as to which the Master
Servicer, a Servicer or the Depositor has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any
action with respect to a REMIC or their assets, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the
terms of this Agreement, the Trustee and the Trust Administrator will consult
with the Master Servicer, the Servicers and the Depositor or their designees,
in writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder and the Trustee
and the Trust Administrator shall not take any such action or cause that
REMIC to take any such action as to which the Master Servicer, any Servicer
or the Depositor has advised it in writing that an Adverse REMIC Event could
occur.
In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the
terms of this Agreement, the Holder of the Class AR or Class AR-L
Certificates will consult with the Trust Administrator or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder, and no such
Person shall take any action or cause the Trust Fund to take any such action
as to which the Trust Administrator has advised it in writing that an Adverse
REMIC Event could occur. The Trustee and the Trust Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne
by the party seeking to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trust
Administrator will, to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of each REMIC created hereunder as "qualified mortgages" as defined
in Section 860G(a)(3) of the Code and "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder, as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of such REMIC, as defined in
Section 860G(c) of the Code, on any contributions to a REMIC after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to the related Servicer, if such Servicer
has in its sole discretion determined to indemnify the Trust Fund against
such tax or if such tax arises out of or results from a breach of such
Servicer's duties under (x) Section 2.07(j) of this Agreement to not enter
into any arrangement by which a REMIC would receive a fee or other
compensation for services or to permit such REMIC to receive any income from
assets other than "qualified mortgages" or "permitted investments,"
(y) Section 3.01 of this Agreement to not make or permit any modification,
waiver or amendment of any Mortgage Loan which would cause any REMIC created
hereunder to fail to qualify as a REMIC or result in the imposition of any
tax under Section 860F(a) or Section 860G(d) of the Code or (z)
Section 3.11(c) of this Agreement to not cause any REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or to subject any REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code of otherwise, (ii) to the Master
Servicer, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under this Agreement or if the Master
Servicer has in its sole discretion determined to indemnify the Trust Fund
against such tax, (iii) to the Trust Administrator, if such tax arises out of
or results from a breach by the Trust Administrator of any of its obligations
under this Article II, (iv) to the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Article II or (v) otherwise against amounts on deposit in the Collection
Account as provided by Section 3.08 and on the Distribution Date(s) following
such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Interest Distribution Amount on each Class entitled thereto
in the same manner as if such taxes constituted a Prepayment Interest
Shortfall.
In accordance with Section 2.07(c), the related Servicer, the
Master Servicer, the Trustee or the Trust Administrator, as applicable, shall
promptly deposit in the Certificate Account or Collection Account, as
applicable, any amount of such tax.
For purposes of this Section 2.07(g), a tax is imposed following
the final and unappealable determination under the Code of the amount of such
tax and written notice thereof by the Tax Matters Person to the party to be
charged.
The failure of the Master Servicer or the related Servicer to
promptly deposit in the Certificate Account or Collection Account, as
applicable, any amount of such tax shall be an Event of Default, as provided
in Section 8.01(b).
(h) The Trust Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC created hereunder on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, none of any Servicer, the Trustee (which
will act only at the direction of the Trust Administrator or as otherwise
specifically provided in this Agreement) or the Trust Administrator shall
accept any contributions of assets to any REMIC created hereunder unless
(subject to Section 2.05) such Servicer, the Trustee or the Trust
Administrator shall have received an Opinion of Counsel (at the expense of
the party seeking to make such contribution) to the effect that the inclusion
of such assets in a REMIC will not cause that REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or subject that
REMIC to any tax under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(j) None of any Servicer, the Trustee (which will act only at the direction
of the Trust Administrator or as otherwise specifically provided in this
Agreement) or the Trust Administrator shall (subject to Section 2.05) enter
into any arrangement by which a REMIC will receive a fee or other
compensation for services nor permit such REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(k) Within 30 days after the Closing Date, the Trust Administrator shall
apply to the Internal Revenue Service for an employer identification number
for each REMIC created hereunder by means of a Form SS-4 or other acceptable
means and prepare and file with the Internal Revenue Service Form 8811,
"Information Return for Real Estate Mortgage Investment Conduits (REMIC) and
Issuers of Collateralized Debt Obligations" for each REMIC created hereunder.
(l) None of the Trustee (which will act only at the direction of the Trust
Administrator or as otherwise specifically provided in this Agreement), the
Trust Administrator, the Master Servicer or any Servicer shall sell, dispose
of or substitute for any of the Mortgage Loans (except in connection with
(i) the default, imminent default or foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of any REMIC
created hereunder, (iii) the termination of any REMIC created hereunder
pursuant to Article X of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) nor acquire any assets for a
REMIC, nor sell or dispose of any investments in the Collection Account or
the Certificate Account for gain nor accept any contributions to a REMIC
after the Closing Date (a) unless it has received an Opinion of Counsel that
such sale, disposition, substitution or acquisition will not affect adversely
the status of any REMIC created hereunder as a REMIC or (b) unless the Master
Servicer or such Servicer has determined in its sole discretion to indemnify
the Trust Fund against such tax.
(m) In order to enable the Trust Administrator to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided to the
Trust Administrator, within ten days after the Closing Date, all information
or data the Trust Administrator determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans and the Trust Administrator shall
be entitled to rely upon any and all such information and data in the
performance of its duties set forth herein. Thereafter, the Master Servicer
shall provide, promptly upon request therefor, any such additional
information or data that the Trustee or the Trust Administrator may from time
to time reasonably request in order to enable the Trustee and the Trust
Administrator to perform their duties as set forth herein and the Trustee and
the Trust Administrator shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein.
DLJMC shall indemnify the Trust Administrator and hold it harmless for any
loss, liability, damage, claim or expense of the Trust Administrator arising
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trust Administrator on a timely basis.
The Master Servicer shall indemnify the Trustee and the Trust Administrator
and hold it harmless for any loss, liability, damage, claim or expense of the
Trustee and the Trust Administrator arising from any failure of the Master
Servicer to provide, or to cause to be provided, accurate information or data
required to be provided by the Master Servicer to the Trustee and the Trust
Administrator on a timely basis; provided, however, that if any Servicer
shall fail to provide such information to the Master Servicer upon timely
request for such information by the Master Servicer, that Servicer shall
indemnify the Master Servicer, the Trustee and the Trust Administrator and
hold it harmless for any loss, liability, damage, claim or expense of the
Master Servicer, the Trustee and the Trust Administrator arising from any
failure of that Servicer to provide, or to cause to be provided, the
information referred to above on a timely basis. The indemnification
provisions hereunder shall survive the termination of this Agreement and
shall extend to any co-trustee and co-Trust Administrator appointed pursuant
to this Agreement.
(n) The Trust Administrator shall account for the rights of the Holders of
the Group 5 Senior Certificates and Class M Certificates to receive payments
in respect of Basis Risk Shortfalls as rights in an interest rate cap
contract written by the Class 5-X Certificateholders in favor of the Holders
of the Group 5 Senior Certificates and Class M Certificates and not as an
obligation of REMIC IV, whose obligation to pay such Certificates will be
subject to a cap equal to the applicable Net Funds Cap and shall account for
such rights as property held separate and apart from the regular interests as
required by Treasury regulation section 1.860G-2(i). Any amounts paid in
respect of Basis Risk Shortfalls by REMIC IV shall be treated as a
distribution to the Class 5-X Certificates. In addition, the Class 5-X
Certificateholders shall be deemed to have entered into a contractual
arrangement with the Class AR and Class AR-L Certificateholders whereby the
Class AR and Class AR-L Certificateholders agree to pay to the Class 5-X
Certificateholders on each Distribution Date amounts that would, in the
absence of such contractual agreement, be distributable with respect to the
residual interest in REMIC IV pursuant to Section 4.01(II)(d)(xiii) (which
amounts are expected to be zero). Thus each Group 5 Senior Certificate and
Class M Certificate shall be treated as representing ownership of not only
REMIC IV regular interests, but also ownership of an interest in an interest
rate cap contract. Each Class 5-X Certificate shall represent an obligation
under an interest rate cap contract. For purposes of determining the issue
price of REMIC IV regular interests, the Trust Administrator shall assume
that the interest rate cap contract has a value of $5,000.
For any Distribution Date on which there is a payment under the
Group 5 Interest Rate Cap Agreement based on a notional balance in excess of
the Class Principal Balance of the Group 5 Certificates, the amount
representing such excess payment shall not be an asset of the Trust and,
instead, shall be paid into and distributed out of a separate trust created
by this Agreement for the benefit of the Group 5 Certificates and shall be
distributed to the Group 5 Certificates pursuant to Section 4.01(II). The
Trust Administrator shall not be responsible for any tax reporting with
respect to such separate trust.
SECTION 2.08. Covenants of the Master Servicer and each Servicer.
The Master Servicer and each Servicer, severally and not jointly,
hereby covenants to the Depositor, the Trustee and the Trust Administrator as
follows:
(a) Such Servicer or the Master Servicer shall comply in the performance of
its obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Mortgage Guaranty Insurance Policy; and
(b) No written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor, the Trustee or the Trust Administrator and prepared by the Master
Servicer or such Servicer pursuant to this Agreement will contain any untrue
statement of a material fact.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, as independent
contractors of the Trust, (i) each Servicer, severally and not jointly, shall
service and administer the related Non-Designated Mortgage Loans in
accordance with the terms of this Agreement and with Accepted Servicing
Practices, (ii) the Master Servicer shall, in accordance with Section 3.03 of
this Agreement, master service and administer the Non-Designated Mortgage
Loans by overseeing and enforcing the servicing of the Non-Designated
Mortgage Loans by the related Servicer according to the terms of this
Agreement and (iii) the Master Servicer shall, in accordance with the
Section 3.22 of this Agreement, master service and administer the Designated
Mortgage Loans by overseeing and enforcing the servicing of the Designated
Mortgage Loans by the related Designated Servicer according to the terms of
the related Designated Servicing Agreement. The obligations of each of WMB,
SPS and Xxxxx Fargo hereunder to service and administer the Mortgage Loans
shall be limited to the WMB Serviced Mortgage Loans, SPS Serviced Mortgage
Loans and the Xxxxx Fargo Serviced Mortgage Loans, respectively; and with
respect to the duties and obligations of each Servicer, references herein to
related "Mortgage Loans" shall be limited to the WMB Serviced Mortgage Loans
(and the related proceeds thereof and related REO Properties) in the case of
WMB, SPS Serviced Mortgage Loans (and the related proceeds thereof and
related REO Properties) in the case of SPS and the Xxxxx Fargo Serviced
Mortgage Loans (and the related proceeds thereof and related REO Properties)
in the case of Xxxxx Fargo; and in no event shall any Servicer have any
responsibility or liability with respect to any of the other Mortgage Loans.
The obligations of the Master Servicer to master service and administer the
Non-Designated Mortgage Loans shall be limited to the WMB Serviced Mortgage
Loans, the Xxxxx Fargo Serviced Mortgage Loans, the SPS Serviced Mortgage
Loans and the Special Serviced Mortgage Loans. In connection with such
servicing and administration of the Non-Designated Mortgage Loans, the Master
Servicer and each Servicer shall have full power and authority, acting alone
and/or through Subservicers as provided in Section 3.02 hereof, to do or
cause to be done any and all things that it may deem necessary or desirable
in connection with such servicing and administration, including but not
limited to, the power and authority, subject to the terms hereof (i) to
execute and deliver, on behalf of the Certificateholders and the Trust,
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 (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided,
that neither the Master Servicer nor a Servicer shall take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee, the Trust Administrator or the Certificateholders
under this Agreement. The Master Servicer and each Servicer shall represent
and protect the interests of the Trust Fund in the same manner as it protects
its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan, and shall not make or
permit any modification, waiver or amendment of any Mortgage Loan that would
cause any REMIC created hereunder to fail to qualify as a REMIC or result in
the imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code. Without limiting the generality of the foregoing, the Master Servicer
and each Servicer, in its own name or in the name of the Depositor and the
Trust, is hereby authorized and empowered by the Depositor, the Trust and the
Trust Administrator, when the Master Servicer or such Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of
the Trust, the Trustee, the Trust Administrator, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders.
The Master Servicer and each Servicer shall prepare and deliver to the
Depositor and/or the Trustee and/or the Trust Administrator such documents
requiring execution and delivery by either or both of them as are necessary
or appropriate to enable the Master Servicer or such Servicer to master
service and administer or service and administer the Mortgage Loans, as
applicable, to the extent that the Master Servicer or such Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee
or the Trust Administrator shall execute such documents and deliver them to
the Master Servicer or such Servicer.
In accordance with the standards of the first paragraph of this
Section 3.01 and unless determined in good faith to be a Nonrecoverable
Advance, each Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the payment of taxes and assessments
on the Mortgaged Properties related to the Non-Designated Mortgage Loans,
which advances constitute Servicing Advances and shall be reimbursable in the
first instance from related collections from the Mortgagors pursuant to
Section 3.06, and further as provided in Section 3.08. In no event will any
Servicer be required to make any Servicing Advance which would constitute a
Nonrecoverable Advance. The costs incurred by a Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties related to the Non-Designated Mortgage Loans and related insurance
premiums shall not, for the purpose of calculating monthly distributions to
the Certificateholders, be added to the Stated Principal Balances of the
related Non-Designated Mortgage Loans, notwithstanding that the terms of such
Non-Designated Mortgage Loans so permit. The parties to this Agreement
acknowledge that Servicing Advances shall be reimbursable pursuant to the
terms of this Agreement and agree that no Servicing Advance shall be rejected
or disallowed by any party unless it has been shown that such Servicing
Advance was not made in accordance with this Agreement.
Each Servicer hereby acknowledges that, to the extent such
Servicer has previously serviced some or all of the Non-Designated Mortgage
Loans pursuant to another servicing agreement, the servicing provisions
contained in this Agreement shall supersede the servicing provisions
contained in such other servicing agreement from and after the Closing Date,
except that such other servicing agreement shall survive and govern with
respect to excess servicing fees and termination without cause. In addition,
the Master Servicer hereby acknowledges that, to the extent the Master
Servicer or any Designated Servicer has previously serviced some or all of
the Designated Mortgage Loans pursuant to another servicing agreement, the
provisions contained in the related Designated Servicing Agreement shall
supersede the provisions contained in such other servicing agreement from and
after the Closing Date.
Notwithstanding anything in this Agreement to the contrary, the
purchase of any Xxxxx Fargo Serviced Mortgage Loan by any Person shall be
subject to the rights of Xxxxx Fargo to continue servicing such Xxxxx Fargo
Serviced Mortgage Loan for the same Servicing Fee substantially in accordance
with the terms of this Agreement and the purchase of any WMB Serviced
Mortgage Loan by any Person shall be subject to the rights of WMB to continue
servicing such WMB Serviced Mortgage Loan for the same Servicing Fee
substantially in accordance with the terms of this Agreement.
With respect to each Mortgage Loan, the related Servicer will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company, on a monthly basis.
Each Servicer is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name or in the
name of any Subservicer, when a Servicer or any Subservicer, as the case may
be, believes it appropriate in its best judgment to register any related
Mortgage Loan on the MERS® System, or cause the removal from the registration
of such Mortgage Loan on the MERS® System, to execute and deliver, on behalf
of the Trustee and the Certificateholders or any of them, any and all
instruments of assignment and other comparable instruments with respect to
such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Non-Designated Mortgage Loans may be subserviced by a Subservicer
on behalf of the related Servicer in accordance with the servicing provisions
of this Agreement; provided, that the Subservicer must be a FNMA-approved
lender or a FHLMC seller/servicer in good standing. With respect to the
Non-Designated Mortgage Loans, each Servicer may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by such Servicer of the
Subservicer shall not release such Servicer from any of its obligations
hereunder and such Servicer shall remain responsible hereunder for all acts
and omissions of the Subservicer as fully as if such acts and omissions were
those of such Servicer. With respect to the Non-Designated Mortgage Loans,
each Servicer shall pay all fees and expenses of any Subservicer engaged by
such Servicer from its own funds.
Notwithstanding the foregoing, with respect to the Non-Designated
Mortgage Loans, each Servicer shall be entitled to outsource one or more
separate servicing functions to a Person (each, an "Outsourcer") that does
not meet the eligibility requirements for a Subservicer, so long as such
outsourcing does not constitute the delegation of such Servicer's obligation
to perform all or substantially all of the servicing of the related
Non-Designated Mortgage Loans to such Outsourcer. In such event, the use by
a Servicer of any such Outsourcer shall not release the related Servicer from
any of its obligations hereunder and such Servicer shall remain responsible
hereunder for all acts and omissions of such Outsourcer as fully as if such
acts and omissions were those of such Servicer, and such Servicer shall pay
all fees and expenses of the Outsourcer from such Servicer's own funds.
Each Servicer may in connection with its duties as Servicer
hereunder enter into transactions with any of its Affiliates relating to the
Non-Designated Mortgage Loans; provided that (a) such Servicer acts (i) in
accordance with Accepted Servicing Practices and the terms of this Agreement,
and (ii) in the ordinary course of business of such Servicer; and (b) the
terms of such transaction are no less favorable to such Servicer than it
would obtain in a comparable arm's-length transaction with a Person that is
not an Affiliate of such Servicer. Notwithstanding the preceding sentence,
any such transaction between a Servicer and any of its Affiliates shall not
release such Servicer from any of its obligations hereunder and such Servicer
shall remain responsible hereunder for all acts and omissions of such
Affiliate with respect to such Mortgage Loans serviced by it as fully as if
such acts and omissions were those of such Servicer. Any fees and expenses
relating to such transaction between such Servicer and its Affiliate that are
not otherwise reimbursable to such Servicer pursuant to this Agreement shall
be borne by the parties thereto and shall not be an expense or fee of the
Trust, the Depositor, the Trustee, the Trust Administrator, the Sellers or
the Master Servicer.
(b) With respect to any Non-Designated Mortgage Loans, at the cost and
expense of a Servicer, without any right of reimbursement from the Depositor,
the Trustee, the Trust Administrator or the applicable Collection Account,
such Servicer shall be entitled to terminate the rights and responsibilities
of its Subservicer and arrange for any servicing responsibilities to be
performed by a successor Subservicer meeting the requirements set forth in
Section 3.02(a), provided, however, that nothing contained herein shall be
deemed to prevent or prohibit such Servicer, at such Servicer's option, from
electing to service the related Non-Designated Mortgage Loans itself. In the
event that a Servicer's responsibilities and duties under this Agreement are
terminated pursuant to Section 8.01, and if requested to do so by the Trustee
or Trust Administrator or such Servicer shall, at its own cost and expense
terminate the rights and responsibilities of its Subservicer as soon as is
reasonably possible. Each Servicer shall pay all fees, expenses or penalties
necessary in order to terminate the rights and responsibilities of its
Subservicer from such Servicer's own funds without any right of reimbursement
from the Depositor, Trustee, Trust Administrator, or the applicable
Collection Account.
(c) Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between a Servicer and its Subservicer or a
Servicer and its Outsourcer, or any reference herein to actions taken through
the Subservicer, the Outsourcer, or otherwise, the related Servicer shall not
be relieved of its obligations to the Depositor, the Trust, Trustee, the
Trust Administrator or Certificateholders and shall be obligated to the same
extent and under the same terms and conditions as if it alone were servicing
and administering the related Non-Designated Mortgage Loans. Each Servicer
shall be entitled to enter into an agreement with its Subservicer and
Outsourcer for indemnification of such Servicer by such Subservicer or
Outsourcer, as applicable, and nothing contained in this Agreement shall be
deemed to limit or modify such indemnification.
For purposes of this Agreement, a Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
related Non-Designated Mortgage Loans that are received by a related
Subservicer regardless of whether such payments are remitted by the
Subservicer to such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Non-Designated Mortgage Loans involving a Subservicer shall
be deemed to be between the Subservicer, and the related Servicer alone, and
the Depositor, the Trustee, the Trust Administrator, the Master Servicer, the
other Servicers and the Special Servicer shall have no obligations, duties or
liabilities with respect to a Subservicer including no obligation, duty or
liability of the Depositor, Trustee, the Trust Administrator, the Master
Servicer, the Special Servicer or other Servicers to pay a Subservicer's fees
and expenses.
(d) Each Servicer is hereby authorized to enter into a financing or other
facility (any such arrangement, a "Facility") under which (i) such Servicer
assigns or pledges to another person (a "Lender") (A) such Servicer's rights
under this Agreement to be reimbursed for any Advances or Servicing Advances,
and (B) any and all rights of such Servicer under this Agreement resulting
from such Servicer's performance of its obligations under this Agreement,
including, without limitation, any Servicing Fees, interest income, Ancillary
Income, and other payments received by such Servicer for servicing the
Mortgage Loans related thereto and (ii) the Lender agrees to fund some or all
Advances and/or Servicing Advances required to be made by such Servicer
pursuant to this Agreement. No consent of the Trustee, Trust Administrator,
Master Servicer, Certificateholders, Rating Agency or any other party is
required before such Servicer may enter into a Facility; provided, however,
that the consent of the Trust Administrator shall be required before such
Servicer may cause to be outstanding at one time more than one Facility.
Notwithstanding the existence of any Facility, such Servicer shall remain
obligated pursuant to this Agreement to make Advances and Servicing Advances
pursuant to and as required by this Agreement, and to perform all duties and
obligations of such Servicer under this Agreement and shall not be relieved
of such obligations by virtue of such Facility.
SECTION 3.03. Master Servicing by Master Servicer.
For and on behalf of the Certificateholders, the Master Servicer
shall oversee and enforce the obligation of WMB, Xxxxx Fargo and SPS to
service and administer the WMB Serviced Mortgage Loans, Xxxxx Fargo Serviced
Mortgage Loans and SPS Serviced Mortgage Loans, respectively, in accordance
with the terms of this Agreement and shall have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such master servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with this
Agreement and with customary and usual standards of practice of prudent
mortgage loan master servicers. Furthermore, the Master Servicer shall
oversee and consult with WMB, Xxxxx Fargo and SPS as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided
to the Master Servicer by WMB, Xxxxx Fargo and SPS and shall cause each of
WMB, Xxxxx Fargo and SPS to perform and observe the covenants, obligations
and conditions to be performed or observed by such Servicer under this
Agreement.
With respect to any Distribution Date, no later than the related
Cash Remittance Date, the Master Servicer shall remit to the Trust
Administrator for deposit in the Certificate Account the amount of the
Compensating Interest Payment for the Master Servicer with respect to each
Mortgage Loan for the related Prepayment Period, to the extent any of WMB,
Xxxxx Fargo, SPS or the related Designated Servicer defaults in its
obligation to make such Compensating Interest Payment pursuant to
Section 3.05. The aggregate of such deposits shall be made from the Master
Servicer's own funds, without reimbursement therefor.
SECTION 3.04. Trustee to Act as Master Servicer or Servicer.
In the event that (A) the Master Servicer shall for any reason no
longer be Master Servicer hereunder or (B) any Servicer shall for any reason
no longer be a Servicer hereunder and, with respect to any Servicer, the
Master Servicer shall for any reason no longer be Master Servicer hereunder
(including, in each case, by reason of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Master Servicer or such Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer or such
Servicer pursuant to Section 3.09 hereof or any acts or omissions of the
related predecessor of the Master Servicer or such Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or
(iv) deemed to have made any representations and warranties of the Master
Servicer or such Servicer hereunder). Any such assumption shall be subject
to Section 8.02 hereof. Notwithstanding the foregoing, if the Trustee has
become the successor to the Master Servicer or a Servicer hereunder, the
Trustee may, if it shall be unwilling to so act, or shall, if it is unable to
so act, appoint, or petition a court of competent jurisdiction to appoint,
any established mortgage loan servicing institution, the appointment of which
does not adversely affect the then-current rating of the Certificates, as the
successor to the Master Servicer or a Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer or such Servicer, as applicable, provided that such successor to the
Master Servicer or such Servicer, as applicable, shall not be deemed to have
made any representation or warranty as to any Mortgage Loan made by the
Master Servicer or such Servicer, as applicable.
Each Servicer shall, upon request of the Trust Administrator, but
at the expense of such Servicer, deliver to the assuming party all documents
and records relating to each Subservicing Agreement or substitute
Subservicing Agreement and the Mortgage Loans then being serviced thereunder
and hereunder by such Servicer and an accounting of amounts collected or held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreement or substitute Subservicing Agreement
to the assuming party.
SECTION 3.05. Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and interest on
all Non-Designated Mortgage Loans have been paid in full or such
Non-Designated Mortgage Loans have become Liquidated Mortgage Loans, each
Servicer shall proceed in accordance with Accepted Servicing Practices to
collect all payments due under each of the related Non-Designated Mortgage
Loans when the same shall become due and payable to the extent consistent
with this Agreement and the terms and provisions of any related Mortgage
Guaranty Insurance Policy and shall take special care with respect to the
Non-Designated Mortgage Loans for which a Servicer collects escrow payments
in ascertaining and estimating Escrow Payments and all other charges that
will become due and payable with respect to the Non-Designated Mortgage Loans
and the related Mortgaged Properties, to the end that the installments
payable by the related Mortgagors will be sufficient to pay such charges as
and when they become due and payable. Consistent with the foregoing, in
connection with Non-Designated Mortgage Loans which it is directly servicing,
each Servicer may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Non-Designated Mortgage Loan and (ii) extend the Due Dates for payments due
on a Mortgage Note for a period not greater than 180 days; provided, however,
that no such Servicer can extend the maturity of any such Non-Designated
Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the related Servicer shall make Advances on the related
Non-Designated Mortgage Loans in accordance with the provisions of
Section 5.01 during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. No Servicer shall be required to institute or join in
litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) Each Servicer shall segregate and hold all funds collected and received
pursuant to a Non-Designated Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
Collection Accounts, in the form of time deposit or demand accounts, titled
"[Servicer's name], in trust for the Holders of Adjustable Rate Mortgage
Trust 2005-10, Adjustable Rate Mortgage-Backed Pass-Through Certificates,
Series 2005-10" or, if established and maintained by a Subservicer on behalf
of a Servicer, "[Subservicer's name], in trust for [Servicer's name]" or
"[Subservicer's name], as agent, trustee and/or bailee of principal and
interest custodial account for [Servicer's name], its successors and assigns,
for various owners of interest in [Servicer's name] mortgage-backed pools.
In the event that a Subservicer employs a subservicer, the Collection Account
shall be titled "[name of Subservicer's subservicer], in trust for
[Subservicer's name]." Each Collection Account maintained by each Servicer
(other than Xxxxx Fargo), shall be an Eligible Account acceptable to the
Depositor and the Trust Administrator. Each Collection Account maintained by
Xxxxx Fargo shall be an Eligible Account. Funds deposited in a Collection
Account may be drawn on by the related Servicer in accordance with
Section 3.08. Any funds deposited in a Collection Account shall either be
invested in Eligible Investments or at all times be fully insured to the full
extent permitted under applicable law.
(c) Each Servicer shall deposit in the applicable Collection Account on a
daily basis (with respect to SPS, within two Business Days of receipt),
unless otherwise indicated, and retain therein, the following collections
remitted by Subservicers or payments received by such Servicer and payments
made by such Servicer subsequent to the Cut-off Date, other than payments of
principal and interest due on or before the Cut-off Date:
(i) all payments on account of principal on the related Non-Designated
Mortgage Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related Non-Designated
Mortgage Loans adjusted to the per annum rate equal to the Mortgage
Rate reduced by the sum of the related Expense Fee Rate, as applicable;
(iii) all Liquidation Proceeds on the related Non-Designated Mortgage Loans;
(iv) all Insurance Proceeds on the related Non-Designated Mortgage Loans
including amounts required to be deposited pursuant to Section 3.09
(other than proceeds to be held in the Escrow Account and applied to
the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 3.09);
(v) all Advances made by such Servicer pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection Account pursuant to
Section 3.08(a)(viii) each month, the applicable amount of the
Compensating Interest Payment for such Servicer for the related
Prepayment Period. The aggregate of such deposits shall be made from
such Servicer's own funds, without reimbursement therefore;
(vii) any amounts required to be deposited by such Servicer in respect of net
monthly income from REO Property related to any Non-Designated Mortgage
Loan pursuant to Section 3.11;
(viii) all Assigned Prepayment Premiums, if applicable; and
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for deposit into each Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, with respect to the Non-Designated
Mortgage Loans, Ancillary Income need not be deposited by such Servicer into
such Collection Account. In addition, notwithstanding the provisions of this
Section 3.05, each Servicer may deduct from amounts received by it, prior to
deposit into the applicable Collection Account, any portion of any Scheduled
Payment representing (i) the applicable Servicing Fee and (ii) with respect
to each Non-Designated Mortgage Loan covered by a Lender Paid Mortgage
Guaranty Insurance Policy, any amounts required to effect timely payment of
the premiums on such Mortgage Guaranty Insurance Policy pursuant to
Section 3.09(c). In the event that a Servicer shall remit any amount not
required to be remitted, it may at any time withdraw or direct the
institution maintaining the related Collection Account to withdraw such
amount from such Collection Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the Trustee or such other institution
maintaining such Collection Account which describes the amounts deposited in
error in such Collection Account. Each Servicer shall maintain adequate
records with respect to all withdrawals made by it pursuant to this Section.
All funds deposited in a Collection Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.08(a).
(d) On or prior to the Closing Date, the Trust Administrator shall
establish and maintain, on behalf of the Certificateholders, the Certificate
Account. The Trust Administrator shall, promptly upon receipt, deposit in
the Certificate Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer of Non-Designated
Mortgage Loans to the Trust Administrator pursuant to
Section 3.08(a)(viii) and (x) and the aggregate amount remitted by each
Designated Servicer to the Master Servicer or Trust Administrator
pursuant to their respective Designated Servicing Agreements, in each
case including any Assigned Prepayment Premiums;
(ii) any amount deposited by the Trust Administrator pursuant to
Section 3.05(e) in connection with any losses on Eligible Investments;
(iii) all Compensating Interest Payments remitted by the Master Servicer to
the Trust Administrator pursuant to Section 3.03 and Section 3.22(b);
(iv) all Advances remitted by the Master Servicer to the Trust Administrator
pursuant to Section 5.01 and Section 3.22(b); and
(v) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that the Master Servicer or a Servicer shall remit
to the Trust Administrator any amount not required to be remitted, the Master
Servicer or such Servicer, as applicable, may at any time direct the Trust
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Trust
Administrator which describes the amounts deposited in error in the
Certificate Account. All funds deposited in the Certificate Account shall be
held by the Trust Administrator in trust for the Certificate holders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.08(b). In no event shall the Trust Administrator incur liability
for withdrawals from the Certificate Account at the direction of the Master
Servicer or any Servicer.
(e) Each institution at which a Collection Account, the Certificate Account
or the Prefunding Account is maintained shall either hold such funds on
deposit uninvested or shall invest the funds therein as directed in writing
by the related Servicer, the Trust Administrator or the Depositor,
respectively, in Eligible Investments, which shall mature not later than
(i) in the case of a Collection Account, the Cash Remittance Date, (ii) in
the case of the Certificate Account, the Business Day immediately preceding
the Distribution Date, or on the Distribution Date, with respect to Eligible
Investments invested with an affiliate of the Trust Administrator and
(iii) in the case of the Prefunding Account, the Business Day immediately
preceding a Subsequent Transfer Date or on the Subsequent Transfer Date if
the invested funds are managed or advised by the Trust Administrator or its
affiliates. All income and gain net of any losses realized from any such
balances or investment of funds on deposit in a Collection Account shall be
for the benefit of the related Servicer as servicing compensation and shall
be remitted to it monthly as provided herein. The amount of any realized
losses in a Collection Account incurred in any such account in respect of any
such investments shall promptly be deposited by the related Servicer (from
its own funds) in the related Collection Account. Neither the Trustee nor
the Trust Administrator shall be liable for the amount of any loss incurred
in respect of any investment or lack of investment of funds held in a
Collection Account or the Prefunding Account and made in accordance with this
Section 3.05. All income and gain net of any losses realized from any such
investment of funds on deposit in the Certificate Account shall be for the
benefit of the Trust Administrator as compensation and shall be remitted to
it monthly as provided herein. The amount of any realized losses in the
Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Trust Administrator (from its
own funds) in the Certificate Account. All income and gain net of any losses
realized from any such balances or investment of funds on deposit in the
Prefunding Account shall be for the benefit of the Depositor and shall be
remitted to it monthly. The amount of any net investment losses in the
Prefunding Account shall promptly be deposited by the Depositor (from its own
funds) in the Prefunding Account.
(f) Each Servicer, other than Xxxxx Fargo, shall give notice to the
Trustee, the Trust Administrator, the Sellers, each Rating Agency, and the
Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof. Xxxxx Fargo shall give notice to the
Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof and, upon receipt of such notice, the
Depositor shall give notice to the Trustee, the Trust Administrator, the
Sellers and each Rating Agency. The Trust Administrator shall give notice to
the Master Servicer and each Servicer, the Sellers, each Rating Agency, the
Trustee and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof.
(g) The Trust Administrator shall establish and maintain, on behalf of the
Certificateholders, the Prefunding Account. On the Closing Date the
Depositor shall remit the Prefunded Amount to the Trust Administrator for
deposit in the Prefunding Account. On each Subsequent Transfer Date, upon
satisfaction of the conditions for such Subsequent Transfer Date set forth in
Sections 2.01(f) and (g), with respect to the related Subsequent Transfer
Agreement, the Trust Administrator shall remit to the Depositor the
applicable Aggregate Subsequent Transfer Amount as payment of the purchase
price for the related Subsequent Mortgage Loans.
If any funds remain in the Prefunding Account on December 25,
2005, to the extent that they represent earnings on the amounts originally
deposited into the Prefunding Account, the Trust Administrator shall
distribute them to the order of the Depositor. The remaining funds, other
than any investment earnings, shall be transferred to the Certificate Account
to be included as part of principal distributions to the related Certificates
on the December 2005 Distribution Date.
(h) The Trust Administrator shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date
the Depositor shall remit the Capitalized Interest Deposit to the Trust
Administrator for deposit in the Capitalized Interest Account. On the
Business Day prior to the October 2005, November 2005 and December 2005
Distribution Dates, the Trust Administrator shall transfer from the
Capitalized Interest Account to the Certificate Account an amount equal to
the Capitalized Interest Distributions for such Distribution Date. On each
of the October 2005, November 2005 and December 2005 Distribution Dates, the
Trust Administrator shall transfer from the Capitalized Interest Account to
the Depositor, an amount equal to the Capitalized Interest Release Amount for
such Distribution Date.
SECTION 3.06. Establishment of and Deposits to Escrow Accounts; Permitted
Withdrawals from Escrow Accounts; Payments of
Taxes, Insurance and Other Charges.
(a) To the extent required by the related Mortgage Note and not violative
of applicable law, the applicable Servicer shall segregate and hold all funds
collected and received pursuant to a Non-Designated Mortgage Loan
constituting Escrow Payments separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Escrow Accounts,
in the form of time deposit or demand accounts, titled, in the case of
Servicers other than WMB, SPS and Xxxxx Fargo, "Adjustable Rate Mortgage
Trust 2005-10, Adjustable Rate Mortgage-Backed Pass-Through Certificates,
Series 2005-10," in the case of WMB, "Washington Mutual Bank, as Servicer for
Adjustable Rate Mortgage Trust 2005-10, Adjustable Rate Mortgage-Backed
Pass-Through Certificates, Series 2005-10," in the case of SPS, "Select
Portfolio Servicing, Inc., as Servicer for Adjustable Rate Mortgage Trust
2005-10, Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series
2005-10," in the case of Xxxxx Fargo, "Xxxxx Fargo Bank, N.A., as Servicer
for Adjustable Rate Mortgage Trust 2005-10, Adjustable Rate Mortgage-Backed
Pass-Through Certificates, Series 2005-10," or, if established and maintained
by a Subservicer on behalf of a Servicer, "[Subservicer's name], in trust for
[Servicer's name]" or "[Subservicer's name], as agent, trustee and/or bailee
of taxes and insurance custodial account for [Servicer's name], its
successors and assigns, for various owners of interest in [Servicer's name]
mortgage backed pools. In the event that a Subservicer employs a subservicer,
the Escrow Accounts shall be titled "[name of Subservicer's subservicer] in
trust for [Subservicer's name]. The Escrow Accounts shall be Eligible
Accounts. Funds deposited in the Escrow Account may be drawn on by the
related Servicer in accordance with Section 3.06(d).
(b) Each Servicer shall deposit or cause to be deposited in its Escrow
Account or Accounts on a daily basis within two Business Days of receipt and
retain therein:
(i) all Escrow Payments collected on account of the related Non-Designated
Mortgage Loans, for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds which are to be applied to
the restoration or repair of any Mortgaged Property related to a
Non-Designated Mortgage Loan.
(c) Each Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06(d). Each Servicer shall be entitled to retain any interest paid
on funds deposited in the related Escrow Account by the depository
institution, other than interest on escrowed funds required by law to be paid
to the Mortgagor. To the extent required by law, the applicable Servicer
shall pay interest on escrowed funds to the Mortgagor notwithstanding that
the Escrow Account may be non interest bearing or that interest paid thereon
is insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be made or caused
to be made by the related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments, water
rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments
for the related Mortgage;
(ii) to reimburse such Servicer for any Servicing Advances made by the such
Servicer with respect to a related Non-Designated Mortgage Loan, but
only from amounts received on the related Non-Designated Mortgage Loan
which represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Non-Designated Mortgage
Loan;
(iv) for transfer to the related Collection Account to reduce the principal
balance of the related Non-Designated Mortgage Loan in accordance with
the terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the Mortgaged Property related
to a Non-Designated Mortgage Loan in accordance with the procedures
outlined in Section 3.09(e);
(vi) to pay to the related Servicer, or any Mortgagor related to a
Non-Designated Mortgage Loan to the extent required by law, any
interest paid on the funds deposited in such Escrow Account;
(vii) to clear and terminate such Escrow Account on the termination of this
Agreement; and
(viii) to remove funds inadvertently placed in the Escrow account by the
related Servicer.
(e) With respect to each Non-Designated Mortgage Loan, the applicable
Servicer shall maintain accurate records reflecting the status of ground
rents and taxes and any other item which may become a lien senior to the lien
of the related Mortgage and the status of Mortgage Guaranty Insurance Policy
premiums, and fire and hazard insurance coverage and shall obtain, from time
to time, all bills for the payment of such charges (including renewal
premiums) and shall effect or cause to be effected payment thereof prior to
the applicable penalty or termination date.
SECTION 3.07. Access to Certain Documentation and Information Regarding
the Non-Designated Mortgage Loans; Inspections.
(a) The Master Servicer and each Servicer shall afford the Depositor, the
Trustee and the Trust Administrator reasonable access to all records and
documentation regarding the Non-Designated Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such
access being afforded without charge, but only upon reasonable written
request and during normal business hours at the office designated by the
Master Servicer or such Servicer. In addition, each Servicer shall afford
the Master Servicer reasonable access to all records and documentation
regarding the Non-Designated Mortgage Loans and all accounts, insurance
information and other matters relating to this Agreement, such access being
afforded without charge, but only upon reasonable written request and during
normal business hours at the office designated by such Servicer. In
addition, each Servicer shall provide to the Special Servicer reasonable
access to all records and documentation regarding the Non-Designated Mortgage
Loans serviced by it that become Special Serviced Mortgage Loans.
(b) Each Servicer, separately with respect to the Non-Designated Mortgage
Loans each directly services, shall inspect the related Mortgaged Properties
as often as deemed necessary by such Servicer in such party's sole
discretion, to assure itself that the value of such Mortgaged Property is
being preserved. In addition, if any Non-Designated Mortgage Loan is more
than 60 days delinquent, such Servicer, as applicable, shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may be required by the primary mortgage guaranty insurer. Each Servicer
shall keep a written or electronic report of each such inspection.
SECTION 3.08. Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) Each Servicer may from time to time make withdrawals from the related
Collection Account for the following purposes:
(i) to pay to such Servicer (to the extent not previously retained by such
Servicer) the servicing compensation to which it is entitled pursuant
to Section 3.14, and to pay to such Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in
or credited to such Collection Account, and with respect to Xxxxx
Fargo, to pay (to the extent not previously retained by Xxxxx Fargo)
any REO Disposition Fee to which it is entitled pursuant to
Section 3.11(e);
(ii) to reimburse such Servicer for unreimbursed Advances made by it, such
right of reimbursement pursuant to this subclause (ii) being limited to
amounts received on the Non-Designated Mortgage Loan(s) in respect of
which any such Advance was made (including without limitation, late
recoveries of payments, Liquidation Proceeds and Insurance Proceeds to
the extent received by such Servicer);
(iii) to reimburse such Servicer for any Nonrecoverable Advance previously
made or any amount expended pursuant to Section 3.11(a);
(iv) to reimburse such Servicer for (A) unreimbursed Servicing Advances or
such Servicer's right to reimbursement pursuant to this clause (A) with
respect to any Non-Designated Mortgage Loan being limited to amounts
received on such Non-Designated Mortgage Loan which represent late
payments of principal and/or interest (including, without limitation,
Liquidation Proceeds and Insurance Proceeds with respect to such
Mortgage Loan) respecting which any such advance was made and (B) for
unpaid Servicing Fees as provided in Section 3.11 hereof;
(v) to pay to the purchaser, with respect to each Non-Designated Mortgage
Loan or property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03 or 3.11, all amounts received thereon
after the date of such purchase;
(vi) to make any payments required to be made pursuant to Section 2.07(g);
(vii) to withdraw any amount deposited in such Collection Account and not
required to be deposited therein;
(viii) with respect to the Non-Designated Mortgage Loans, on the Cash
Remittance Date, to withdraw an amount equal to the portion of (a) with
respect to the Mortgage Loans in Loan Group 1, Loan Group 2, Loan
Group 3, Loan Group 4 and Loan Group 6, the Available Distribution
Amount and (b) with respect to the Mortgage Loans in Loan Group 5, the
Interest Remittance Amount and Principal Remittance Amount, in each
case applicable to the Mortgage Loans serviced by such Servicer, who
will remit the aggregate of such amounts to the Trust Administrator for
deposit in the Certificate Account;
(ix) with respect to each Non-Designated Mortgage Loan covered by a Lender
Paid Mortgage Guarantee Insurance Policy, to effect timely payment of
the related premiums on such Mortgage Guarantee Insurance Policy, as
applicable, pursuant to Section 3.09(c), to the extent not deducted by
such Servicer prior to deposit into the applicable Collection Account
pursuant to Section 3.05(c);
(x) on or prior to 4:00 p.m. New York time on the Cash Remittance Date
preceding each Distribution Date, each applicable Servicer shall
withdraw an amount equal to the sum of all Assigned Prepayment Premiums
received during the related Prepayment Period applicable to the
Mortgage Loans serviced by such Servicer, and remit such amount to the
Trust Administrator for deposit in the Certificate Account; and
(xi) to clear and terminate such Collection Account upon termination of this
Agreement pursuant to Section 11.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Non-Designated Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the related Collection Account pursuant to
such subclauses (i), (ii), (iv) and (v). Prior to making any withdrawal from
a Collection Account pursuant to subclause (iii) for reimbursement of a
Nonrecoverable Advance, the related Servicer shall deliver to the Trust
Administrator a certificate of a Servicing Officer indicating the amount of
any previous Advance or Servicing Advance determined by such Servicer to be a
Nonrecoverable Advance and identifying the related Non-Designated Mortgage
Loans(s), and their respective portions of such Nonrecoverable Advance. In
connection with the payment of a Purchase Price, if a Servicer is not
required to remit unreimbursed Advances and Servicing Advances as specified
in the definition of Purchase Price, such Servicer shall be deemed to have
been reimbursed for such amount.
(b) The Trust Administrator shall withdraw funds from the Certificate
Account for distributions to Certificateholders, in the manner specified in
this Agreement (and to withhold from the amounts so withdrawn, the amount of
any taxes that it is authorized to withhold pursuant to Section 2.07). In
addition, the Trust Administrator may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to itself any investment income earned for the related
Distribution Date, and to pay to itself or the Master Servicer any
other amounts to which it or the Master Servicer is entitled to
reimbursement or payment under the terms of this Agreement;
(ii) to withdraw and return to the Master Servicer or the applicable
Servicer for deposit to the applicable Collection Account any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(iii) to clear and terminate the Certificate Account upon termination of the
Agreement pursuant to Section 11.01 hereof.
SECTION 3.09. Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance
Policy; Claims; Restoration of Mortgaged
Property.
(a) Each Servicer shall cause to be maintained for each related
Non-Designated Mortgage Loan hazard insurance such that all buildings upon
the related Mortgaged Property are insured by a generally acceptable insurer
rated either: "V" or better in the current Best's Key Rating Guide ("Best's")
or acceptable to FNMA or FHLMC against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) the replacement value of the improvements securing such
Non-Designated Mortgage Loan and (ii) the greater of (A) the outstanding
principal balance of such Non-Designated Mortgage Loan and (B) an amount such
that the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co insurer.
If upon origination of the Non-Designated Mortgage Loan, the
related Mortgaged Property was located in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), the related
Servicer shall cause a flood insurance policy to be maintained with respect
to such Non-Designated Mortgage Loan. Such policy shall meet the
requirements of the current guidelines of the Federal Insurance
Administration and be in an amount representing coverage equal to the lesser
of (i) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement cost basis (or the unpaid
principal balance of the mortgage if replacement cost coverage is not
available for the type of building insured) and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973,
as amended.
If a Mortgage related to a Non-Designated Mortgage Loan is
secured by a unit in a condominium project, the related Servicer shall verify
that the coverage required of the owner's association, including hazard,
flood, liability, and fidelity coverage, is being maintained in accordance
with the requirements of the related Servicer for mortgage loans that it
services on its own account.
Each Servicer shall cause to be maintained on each Mortgaged
Property related to a Non-Designated Mortgage Loan such other additional
special hazard insurance as may be required pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance, or pursuant to the requirements of any Mortgage
Guaranty Insurance Policy insurer, or as may be required to conform with
Accepted Servicing Practices to the extent permitted by the Mortgage Note,
the Mortgage or applicable law provided that the related Servicer shall not
be required to bear the cost of such insurance.
All policies required hereunder shall name the related Servicer
as loss payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for prior written notice of any
cancellation, reduction in amount or material change in coverage.
Each Servicer shall not interfere with the Mortgagor's freedom of
choice at the origination of such Non-Designated Mortgage Loan in selecting
either his insurance carrier or agent, provided, however, that such Servicer
shall not accept any such insurance policies from insurance companies unless
such companies are rated: B:III or better in Best's or acceptable to FNMA or
FHLMC and are licensed to do business in the jurisdiction in which the
Mortgaged Property is located. The related Servicer shall determine that such
policies provide sufficient risk coverage and amounts, that they insure the
property owner, and that they properly describe the property address.
Pursuant to Section 3.05, any amounts collected by a Servicer
under any such policies (other than amounts to be deposited in the related
Escrow Account and applied to the restoration or repair of the related
Mortgaged Property, or property acquired in liquidation of the Non-Designated
Mortgage Loan, or to be released to the Mortgagor, in accordance with such
Servicer's normal servicing procedures) shall be deposited in the related
Collection Account (subject to withdrawal pursuant to Section 3.08(a)).
Any cost incurred by a Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trust Administrator for their
benefit, be added to the principal balance of the Non-Designated Mortgage
Loan, notwithstanding that the terms of the Non-Designated Mortgage Loan so
permit. Such costs shall constitute a Servicing Advance and will be
reimbursable to the related Servicer to the extent permitted by Section 3.08
hereof. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor related to a Non-Designated
Mortgage Loan or maintained on property acquired in respect of a Mortgage
related to a Non-Designated Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) In the event that a Servicer shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the related Non-Designated Mortgage Loans, then, to the
extent such policy provides coverage in an amount equal to the amount
required pursuant to Section 3.09(a) and otherwise complies with all other
requirements of Section 3.09(a), it shall conclusively be deemed to have
satisfied its obligations as set forth in Section 3.09(a). Any amounts
collected by a Servicer under any such policy relating to a Non-Designated
Mortgage Loan shall be deposited in the related Collection Account subject to
withdrawal pursuant to Section 3.08(a). Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with Section 3.09(a),
and there shall have been a loss which would have been covered by such
policy, the related Servicer shall deposit in the related Collection Account
at the time of such loss the amount not otherwise payable under the blanket
policy because of such deductible clause, such amount to be deposited from
such Servicer's funds, without reimbursement therefor. Upon request of the
Trust Administrator, a Servicer shall cause to be delivered to the Trust
Administrator a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Trust
Administrator. In connection with its activities as Servicer of the related
Non-Designated Mortgage Loans, such Servicer agrees to present, on behalf of
itself, the Depositor, and the Trust Administrator for the benefit of the
Certificateholders, claims under any such blanket policy.
(c) With respect to each Non-Designated Mortgage Loan with a Loan-to-Value
Ratio in excess of 80% which the related Seller represented to be covered by
a Mortgage Guaranty Insurance Policy as of the Cut-off Date, the related
Servicer shall, without any cost to the Depositor or Trust Administrator,
maintain or cause the Mortgagor to maintain in full force and effect a
Mortgage Guaranty Insurance Policy insuring that portion of the
Non-Designated Mortgage Loan in excess of 75% of value, and shall pay or
shall cause the Mortgagor to pay, the premium thereon on a timely basis,
until the loan-to-value ratio of such Non-Designated Mortgage Loan is reduced
to 80%, based on either (i) a current appraisal of the Mortgaged Property or
(ii) the appraisal of the Mortgaged Property obtained at the time the
Non-Designated Mortgage Loan was originated. In the event that such Mortgage
Guaranty Insurance Policy shall be terminated prior to the loan-to-value
ratio of such Non-Designated Mortgage Loan being reduced to 80%, the related
Servicer shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such
terminated Mortgage Guaranty Insurance Policy. If the insurer shall cease to
be a Qualified Insurer, the related Servicer shall determine whether
recoveries under the Mortgage Guaranty Insurance Policy are jeopardized for
reasons related to the financial condition of such insurer, it being
understood that such Servicer shall in no event have any responsibility or
liability for any failure to recover under the Mortgage Guaranty Insurance
Policy for such reason. If the related Servicer determines that recoveries
are so jeopardized, it shall notify the Mortgagor, if required, and obtain
from another Qualified Insurer a replacement insurance policy. The related
Servicer shall not take any action which would result in noncoverage under
any applicable Mortgage Guaranty Insurance Policy of any loss which, but for
the actions of such Servicer would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to
be entered into pursuant to Section 3.10, each Servicer shall promptly notify
the insurer under the related Mortgage Guaranty Insurance Policy, if any, of
such assumption or substitution of liability in accordance with the terms of
such Mortgage Guaranty Insurance Policy and shall take all actions which may
be required by such insurer as a condition to the continuation of coverage
under such Mortgage Guaranty Insurance Policy, provided that such required
actions are in compliance with all applicable law. If such Mortgage Guaranty
Insurance Policy is terminated as a result of such assumption or substitution
of liability, the related Servicer shall obtain a replacement Mortgage
Guaranty Insurance Policy as provided above; provided that under applicable
law and the terms of the related Mortgage Note and Mortgage the cost of such
policy may be charged to the successor Mortgagor.
With respect to each Non-Designated Mortgage Loan covered by a
Lender Paid Mortgage Guaranty Insurance Policy, the applicable Servicer
agrees to effect timely payment of the premiums on such Mortgage Guaranty
Insurance Policy from amounts on deposit in the Collection Account, or
deducted by such Servicer prior to deposit into the applicable Collection
Account or pursuant to Section 3.05(c) with respect to such Non-Designated
Mortgage Loan. If amounts on deposit in the Collection Account, or deducted
by such Servicer prior to deposit into the applicable Collection Account
pursuant to Section 3.05(c) with respect to such Non-Designated Mortgage
Loan, are not sufficient to pay the premiums on such Mortgage Guaranty
Insurance Policy, the applicable Servicer agrees to effect timely payment of
such premiums, and such costs shall be recoverable by such Servicer from the
related Liquidation Proceeds or otherwise as a Servicing Advance pursuant to
Section 3.08(a). With respect to each Non-Designated Mortgage Loan covered
by a Mortgage Guaranty Insurance Policy that is not Lender Paid, the Servicer
agrees to effect timely payment of the premiums on such Mortgage Guaranty
Insurance Policy, and such costs not otherwise recoverable from the Mortgagor
shall be recoverable by such Servicer from the related Liquidation Proceeds
or otherwise as a Servicing Advance pursuant to Section 3.08(a).
(d) In connection with its activities as servicer, each Servicer agrees to
prepare and present, on behalf of itself, the Depositor, the Trust, the
Trustee, the Trust Administrator and the Certificateholders, claims to the
insurer under any Mortgage Guaranty Insurance Policy related to a
Non-Designated Mortgage Loan in a timely fashion in accordance with the terms
of such Mortgage Guaranty Insurance Policy and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Mortgage
Guaranty Insurance Policy respecting defaulted Non-Designated Mortgage Loans.
Pursuant to Section 3.05, any amounts collected by a Servicer under any
Mortgage Guaranty Insurance Policy shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.08.
(e) With respect to any Non-Designated Mortgage Loan, each Servicer need
not obtain the approval of the Trustee or the Trust Administrator prior to
releasing any Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, each Servicer
shall comply with the following conditions in connection with any such
release of Insurance Proceeds:
(i) such Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with
respect thereto;
(ii) such Servicer shall take all steps necessary to preserve the priority
of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, such Servicer shall place the Insurance
Proceeds in the related Escrow Account.
(f) With respect to any Non-Designated Mortgage Loan, if the Trust
Administrator is named as an additional loss payee, the related Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Trustee or the Trust Administrator.
SECTION 3.10. Enforcement of Due on Sale Clauses; Assumption Agreements.
(a) With respect to a Non-Designated Mortgage Loan, each Servicer shall use
its best efforts to enforce any "due-on-sale" provision contained in any
related Mortgage or Mortgage Note and to deny assumption by the person to
whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the related Servicer shall, to
the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Non-Designated Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that such
Servicer shall not exercise such rights if prohibited by law from doing so or
if the exercise of such rights would impair or threaten to impair any
recovery under the related Mortgage Guaranty Insurance Policy, if any.
(b) With respect to a Non-Designated Mortgage Loan, if a Servicer
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, such Servicer shall enter into (i) an assumption and
modification agreement with the person to whom such property has been
conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event
such Servicer is unable under applicable law to require that the original
Mortgagor remain liable under the Mortgage Note, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Notwithstanding the foregoing, a Servicer shall not be deemed
to be in default under this Section by reason of any transfer or assumption
which such Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever. In connection with any such
assumption, no material term of the Mortgage Note, including without
limitation, the Mortgage Rate borne by the related Mortgage Note, the term of
the Non-Designated Mortgage Loan or the outstanding principal amount of the
Non-Designated Mortgage Loan shall be changed.
(c) To the extent that any Non-Designated Mortgage Loan is assumable, the
related Servicer shall inquire diligently into the creditworthiness of the
proposed transferee, and shall use the underwriting criteria for approving
the credit of the proposed transferee which are used by FNMA with respect to
underwriting mortgage loans of the same type as the Non-Designated Mortgage
Loans. If the credit of the proposed transferee does not meet such
underwriting criteria, the related Servicer diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Non-Designated Mortgage Loan.
(d) With respect to a Non-Designated Mortgage Loan, subject to each
Servicer's duty to enforce any due-on-sale clause to the extent set forth in
this Section 3.10, in any case in which the related Mortgaged Property has
been conveyed to a Person by the related Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that 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 Non-Designated Mortgage Loan, such Servicer
shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to execute
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. In connection with any such assumption, no material
term of the Mortgage Note may be changed. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the related Servicer shall deliver an Officer's
Certificate signed by a Servicing Officer stating that the requirements of
this subsection have been met in connection therewith. The related Servicer
shall notify the Trustee and the Trust Administrator that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee and the Trust Administrator a copy of such substitution or assumption
agreement, and shall forward the original to the Custodian which shall be
added to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof. Any fee collected by a Servicer for
entering into an assumption or substitution of liability agreement will be
retained by such Servicer as additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) Each Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
related Non-Designated Mortgage Loans as come into and continue in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments. In connection with such foreclosure or other
conversion, each Servicer shall take such action as (i) such Servicer would
take under similar circumstances with respect to a similar mortgage loan held
for its own account for investment, (ii) shall be consistent with Accepted
Servicing Practices, (iii) such Servicer shall determine consistently with
Accepted Servicing Practices to be in the best interest of the Trust and
Certificateholders, and (iv) is consistent with the requirements of the
insurer under any Required Insurance Policy; provided, however, that such
Servicer shall not be required to expend its own funds in connection with any
foreclosure 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 related Non-Designated Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds. Any funds expended by any
Servicer pursuant to this Section 3.11(a) shall be reimbursable in full
pursuant to Section 3.08(a)(iii). The related Servicer shall be responsible
for all other costs and expenses incurred by it in any such proceedings;
provided, however, that it shall be entitled to reimbursement thereof from
the Liquidation Proceeds with respect to the related Mortgaged Property or
otherwise as a Servicing Advance in accordance with Section 3.08(a).
With respect to any Non-Designated Mortgage Loans,
notwithstanding anything to the contrary contained in this Agreement, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the related Servicer has reasonable cause to believe that the
related Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, or if the Trust Administrator otherwise requests, an environmental
inspection or review of such Mortgaged Property conducted by a qualified
inspector shall be arranged for by such Servicer. Upon completion of the
inspection, the related Servicer shall promptly provide the Trust
Administrator with a written report of environmental inspection.
In the event the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, the related Servicer shall not proceed with foreclosure or acceptance
of a deed in lieu of foreclosure if the estimated costs of the environmental
clean up, as estimated in the environmental inspection report, together with
the Servicing Advances and Advances made by such Servicer and the estimated
costs of foreclosure or acceptance of a deed in lieu of foreclosure exceeds
the estimated value of the Mortgaged Property. If however, the aggregate of
such clean up and foreclosure costs, Advances and Servicing Advances are less
than or equal to the estimated value of the Mortgaged Property, then the
related Servicer may, in its reasonable judgment and in accordance with
Accepted Servicing Practices, choose to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure and such Servicer shall be
reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean up costs, as applicable, from the related Liquidation Proceeds, or if
the Liquidation Proceeds are insufficient to reimburse fully such Servicer,
such Servicer shall be entitled to be reimbursed from amounts in the related
Collection Account pursuant to Section 3.08(a) hereof. In the event the
related Servicer does not proceed with foreclosure or acceptance of a deed in
lieu of foreclosure pursuant to the first sentence of this paragraph, such
Servicer shall be reimbursed for all Advances and Servicing Advances made
with respect to the related Mortgaged Property from the related Collection
Account pursuant to Section 3.08(a) hereof, and such Servicer shall have no
further obligation to service such Non-Designated Mortgage Loan under the
provisions of this Agreement.
(b) With respect to any REO Property related to a Non-Designated Mortgage
Loan, subject to applicable law, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name
shall be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The related Servicer shall
ensure that the title to such REO Property references this Agreement and the
Trustee capacity hereunder. Pursuant to its efforts to sell such
REO Property, the related Servicer shall in accordance with Accepted
Servicing Practices manage, conserve, protect and operate each REO Property
for the purpose of its prompt disposition and sale. The related Servicer,
either itself or through an agent selected by such Servicer, shall manage,
conserve, protect and operate the 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. Upon request, the related Servicer
shall furnish to the Trust Administrator on or before each Distribution Date
a statement with respect to any REO Property covering the operation of such
REO Property for the previous calendar month and such Servicer's efforts in
connection with the sale of such REO Property and any rental of such
REO Property incidental to the sale thereof for the previous calendar month.
That statement shall be accompanied by such other information as the Trust
Administrator shall reasonably request and which is necessary to enable the
Trust Administrator to comply with the reporting requirements of the REMIC
Provisions. The net monthly rental income, if any, from such REO Property
shall be deposited in the related Collection Account no later than the close
of business on each Determination Date. The related Servicer shall perform
the tax reporting and withholding required by Sections 1445 and 6050J of the
Code with respect to foreclosures and abandonments, the tax reporting
required by Section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by Section 6050P of
the Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing such tax and information returns as may be
required, in the form required, and delivering the same to the Trust
Administrator for filing.
To the extent consistent with Accepted Servicing Practices, the
related Servicer shall also maintain on each REO Property related to a
Non-Designated Mortgage Loan fire and hazard insurance with extended coverage
in an amount which is equal to the outstanding principal balance of the
related Non-Designated Mortgage Loan (as reduced by any amount applied as a
reduction of principal at the time of acquisition of the REO Property),
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee and the Trust Administrator shall have
been supplied with an Opinion of Counsel to the effect that the holding by
the Trust Fund of such Mortgaged Property subsequent to such three-year
period will not result in the imposition of taxes on "prohibited
transactions" of any REMIC hereunder as defined in section 860F of the Code
or cause any REMIC hereunder to fail to qualify as a REMIC at any time that
any Certificates are outstanding, in which case the Trust Fund may continue
to hold such Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel) or (ii) the applicable Servicer shall have applied for,
prior to the expiration of such three-year period, an extension of such
three-year period in the manner contemplated by Section 856(e)(3) of the
Code, in which case the three-year period shall be extended by the applicable
extension period. Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or
on behalf of the Trust Fund in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or
(ii) subject any REMIC hereunder to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the related Servicer has
agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, as that term is defined in
Section 7701(a)(30) of the Code, in connection with any foreclosure or
acquisition of a deed in lieu of foreclosure (together, "foreclosure") in
respect of such Mortgage Loan, the related Servicer will cause compliance
with the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax obligation
arises with respect to the proceeds of such foreclosure except to the extent,
if any, that proceeds of such foreclosure are required to be remitted to the
obligors on such Mortgage Loan.
(d) The decision of a Servicer to foreclose on a defaulted Non-Designated
Mortgage Loan shall be subject to a determination by such Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO
Properties, net of reimbursement to such Servicer for expenses incurred
(including any property or other taxes) in connection with such management
and net of applicable accrued and unpaid Servicing Fees, and unreimbursed
Advances and Servicing Advances, shall be applied to the payment of principal
of and interest on the related defaulted Non-Designated Mortgage Loans (with
interest accruing as though such Non-Designated Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the related Collection Account.
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 Non-Designated Mortgage Loan for
such calendar month, such excess shall be considered to be a partial
prepayment of principal of the related Non-Designated Mortgage Loan.
(e) The proceeds from any liquidation of a Non-Designated Mortgage Loan, as
well as any income from a related REO Property, will be applied in the
following order of priority: first, to reimburse the related Servicer for any
related unreimbursed Servicing Advances and Servicing Fees, and with respect
to Xxxxx Fargo, any REO Disposition Fees related to such Mortgage Loan;
second, to reimburse such Servicer for any unreimbursed Advances; third, to
reimburse the related Collection Account for any Nonrecoverable Advances (or
portions thereof) that were previously withdrawn by such Servicer pursuant to
Section 3.08(a)(iii) that related to such Non-Designated Mortgage Loan;
fourth, to accrued and unpaid interest (to the extent no Advance has been
made for such amount or any such Advance has been reimbursed) on the
Non-Designated Mortgage Loan or related REO Property, at the per annum rate
equal to the related Mortgage Rate reduced by the related Servicing Fee Rate,
and any primary mortgage guaranty insurance fee rate, if applicable, to the
Due Date occurring in the month in which such amounts are required to be
distributed; and fifth, as a recovery of principal of the Mortgage Loan.
Excess proceeds, if any, from the liquidation of a Liquidated Mortgage Loan
("Excess Proceeds") that is a Non-Designated Mortgage Loan will be retained
by the related Servicer as additional servicing compensation pursuant to
Section 3.14.
(f) With respect to any Mortgage Loan related to the Group 1, Group 2,
Group 3 or Group 4 Certificates, a Servicer of such Mortgage Loans may (but
is not obligated to) enter into a special servicing agreement with an
unaffiliated Holder of a 100% Percentage Interest of the most junior
outstanding Class C-B Certificates. Any such agreement may contain
provisions whereby such Holder may (i) instruct the related Servicer to
commence or delay foreclosure proceedings with respect to such Mortgage Loans
that are delinquent and will contain provisions for the deposit of cash with
such Servicer by such Holder that would be available for distribution to
Certificateholders if Liquidation Proceeds are less than they otherwise may
have been had such Servicer acted in accordance with its normal procedures,
(ii) purchase such Mortgage Loans that are delinquent from the Trust Fund
immediately prior to the commencement of foreclosure proceedings at a price
equal to the Purchase Price, and/or (iii) assume all of the servicing rights
and obligations with respect to such Mortgage Loans that are delinquent so
long as (A) such Holder meets the requirements for a Subservicer set forth
in Section 3.02(a), (B) such Holder has a current special servicing ranking
of at least "Average" from S&P, (C) such Holder will service such Mortgage
Loans in accordance with this Agreement, (D) the related Servicer has the
right to transfer such servicing rights without the payment of any
compensation to a Subservicer.
With respect to any Mortgage Loan related to the Group 5
Certificates, a Servicer of such Mortgage Loans may (but is not obligated to)
enter into a special servicing agreement with an unaffiliated Holder of a
100% Percentage Interest of the Class 5-X Certificates. Any such agreement
may contain provisions whereby such Holder may (i) instruct the related
Servicer to commence or delay foreclosure proceedings with respect to such
Mortgage Loans that are delinquent and will contain provisions for the
deposit of cash with such Servicer by such Holder that would be available for
distribution to Certificateholders if Liquidation Proceeds are less than they
otherwise may have been had such Servicer acted in accordance with its normal
procedures, (ii) purchase such Mortgage Loans that are delinquent from the
Trust Fund immediately prior to the commencement of foreclosure proceedings
at a price equal to the Purchase Price, and/or (iii) assume all of the
servicing rights and obligations with respect to such Mortgage Loans that are
delinquent so long as such Holder (A) such Holder meets the requirements for
a Subservicer set forth in Section 3.02(a), (B) such Holder has a current
special servicing ranking of at least "Average" from S&P, (C) such Holder
will service such Mortgage Loans in accordance with this Agreement, (D) the
related Servicer has the right to transfer such servicing rights without the
payment of any compensation to a Subservicer.
With respect to any Mortgage Loan related to the Group 6
Certificates, a Servicer of such Mortgage Loans may (but is not obligated to)
enter into a special servicing agreement with an unaffiliated Holder of a
100% Percentage Interest of the most junior outstanding Class 6-B
Certificates. Any such agreement may contain provisions whereby such Holder
may (i) instruct the related Servicer to commence or delay foreclosure
proceedings with respect to such Mortgage Loans that are delinquent and will
contain provisions for the deposit of cash with such Servicer by such Holder
that would be available for distribution to Certificateholders if Liquidation
Proceeds are less than they otherwise may have been had such Servicer acted
in accordance with its normal procedures, (ii) purchase such Mortgage Loans
that are delinquent from the Trust Fund immediately prior to the commencement
of foreclosure proceedings at a price equal to the Purchase Price, and/or
(iii) assume all of the servicing rights and obligations with respect to such
Mortgage Loans that are delinquent so long as (A) such Holder meets the
requirements for a Subservicer set forth in Section 3.02(a), (B) such Holder
has a current special servicing ranking of at least "Average" from S&P, (C)
such Holder will service such Mortgage Loans in accordance with this
Agreement, (D) the related Servicer has the right to transfer such servicing
rights without the payment of any compensation to a Subservicer.
(g) The Special Servicer, at its option, may (but is not obligated to)
purchase from the Trust Fund, (a) any Mortgage Loan that is delinquent in
payment 90 or more days or (b) any related Mortgage Loan with respect to
which there has been initiated legal action or other proceedings for the
foreclosure of the related Mortgaged Property either judicially or
non-judicially, in each case, provided that the applicable Servicer has the
right to transfer the related servicing rights without the payment of any
compensation to a Subservicer. In the event that the Special Servicer
exercises such option, the Purchase Price therefor shall be deposited in the
related Collection Account and upon such deposit of the Purchase Price and
receipt of a Request for Release in the form of Exhibit K hereto, the
Custodian shall release the related Mortgage File held for the benefit of the
Certificateholders to the Special Servicer, and the Trustee shall execute and
deliver at the Special Servicer's direction such instruments of transfer or
assignment prepared by the Special Servicer, in each case without recourse,
as shall be necessary to transfer title from the Trustee to the Special
Servicer. The applicable Servicer shall be entitled to reimbursement from
the Special Servicer for all expenses incurred by it in connection with the
transfer of any Mortgage Loan to the Special Servicer pursuant to this
Section 3.11(g).
SECTION 3.12. Trustee and Trust Administrator to Cooperate; Release of
Mortgage Files.
Upon the payment in full of any Non-Designated Mortgage Loan, or
the receipt by a Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, such Servicer will
immediately notify the Custodian by delivering, or causing to be delivered a
"Request for Release" substantially in the form of Exhibit K. Upon receipt
of such request, the Custodian shall within three Business Days release the
related Mortgage File to the related Servicer, and the Trustee shall within
three Business Days of such Servicer's direction execute and deliver to such
Servicer the deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by
such Servicer, and the Custodian shall deliver the Mortgage Note with written
evidence of cancellation thereon. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Non-Designated Mortgage Loan, including for
such purpose, collection under any policy of flood insurance, any fidelity
bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or
the making of any corrections to the Mortgage Note or the Mortgage or any of
the other documents included in the Mortgage File, the Custodian within three
Business Days of delivery to the Custodian of a Request for Release in the
form of Exhibit K signed by a Servicing Officer, release the Mortgage File to
the related Servicer. Subject to the further limitations set forth below,
the related Servicer shall cause the Mortgage File or documents so released
to be returned to the Custodian on its behalf, when the need therefor by such
Servicer no longer exists, unless the Non-Designated Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Collection
Account, in which case such Servicer shall deliver to the Trustee, or the
Custodian a Request for Release in the form of Exhibit K, signed by a
Servicing Officer. Each Servicer is also authorized to cause the removal
from the registration on the MERS® System of such Mortgage and to execute and
deliver, on behalf of the Trustee and the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation or of partial or full
release, including an assignment of such loan to the Trustee.
If a Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property related to a Non-Designated
Mortgage Loan as authorized by this Agreement, such Servicer shall deliver or
cause to be delivered to the Trustee, for signature, as appropriate, any
court pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by
the Mortgage Note or the Mortgage or otherwise available at law or in equity.
SECTION 3.13. Documents, Records and Funds in Possession of a Servicer to
be Held for the Trust.
Notwithstanding any other provisions of this Agreement, each
Servicer shall transmit to the Custodian, as required by this Agreement all
documents and instruments in respect of a Non-Designated Mortgage Loan coming
into the possession of the related Servicer from time to time required to be
delivered to the Trustee, or the Custodian on its behalf, pursuant to the
terms hereof and shall account fully to the Trust Administrator for any funds
received by such Servicer or which otherwise are collected by such Servicer
as Liquidation Proceeds or Insurance Proceeds in respect of any
Non-Designated Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, a Servicer in respect of any Non-Designated
Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any
funds on deposit in a Collection Account, shall be held by the related
Servicer for and on behalf of the Trust, the Trustee or the Trust
Administrator and shall be and remain the sole and exclusive property of the
Trust, subject to the applicable provisions of this Agreement. Each Servicer
also agrees that it shall not create, incur or subject any Mortgage File or
any funds that are deposited in the related Collection Account, Certificate
Account or any related Escrow Account, or any funds that otherwise are or may
become due or payable to the Trust, the Trustee or the Trust Administrator
for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert
by legal action or otherwise any claim or right of setoff against any
Mortgage File or any funds collected on, or in connection with, a
Non-Designated Mortgage Loan, except, however, that such Servicer shall be
entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to such Servicer under this Agreement.
SECTION 3.14. Servicing Fee; Indemnification of Master Servicer.
(a) As compensation for its services hereunder, each Servicer shall be
entitled to withdraw from the applicable Collection Account or to retain from
interest payments on the related Non-Designated Mortgage Loans, the amount of
its Servicing Fee, for each Mortgage Loan serviced by it, less any amounts in
respect of its Servicing Fee, as applicable, payable by such Servicer
pursuant to Section 3.05(c)(vi). The Servicing Fee is limited to, and payable
solely from, the interest portion of such Scheduled Payments collected by the
related Servicer or as otherwise provided in Section 3.08(a). In connection
with the servicing of any Special Serviced Mortgage Loan, the Special
Servicer shall receive the Servicing Fee for such Special Serviced Mortgage
Loan as its compensation and Ancillary Income with respect to Special
Serviced Mortgage Loans.
(b) With respect to each Non-Designated Mortgage Loan, additional servicing
compensation in the form of Ancillary Income and Excess Proceeds shall be
retained by the related Servicer, and additional servicing compensation in
the form of Payoff Interest not required to make payments in respect of
Compensating Interest Payments shall be retained by SPS. Each Servicer shall
be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including the payment of any expenses
incurred in connection with any Subservicing Agreement entered into pursuant
to Section 3.02 and the payment of any premiums for insurance required
pursuant to Section 3.18) and shall not be entitled to reimbursement thereof
except as specifically provided for in this Agreement.
(c) The Master Servicer shall be compensated by the Trust Administrator as
separately agreed. The Master Servicer and any director, officer, employee
or agent of the Master Servicer shall be indemnified by DLJMC (or if DLJMC
shall fail to do so, by the Trust) and held harmless against any loss,
liability or expense (including reasonable attorney's fees and expenses)
incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Certificates or (c) the performance of any of the Master
Servicer's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Master Servicer's duties hereunder or incurred by
reason of any action of the Master Servicer taken at the direction of the
Certificateholders; provided, however, that the sum of (x) such indemnity
amounts payable by DLJMC or the Trust to the Master Servicer pursuant to this
Section 3.14(c) and (y) the indemnity amounts payable by DLJMC or the Trust
to the Trust Administrator pursuant to Section 10.05, shall not exceed
$200,000 per year; provided, further, that any amounts not payable by DLJMC
or the Trust to the Master Servicer due to the preceding proviso shall be
payable by DLJMC (or if DLJMC fails to do so, by the Trust) in any succeeding
year, subject to the aggregate $200,000 per annum limitation imposed by the
preceding proviso. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Master Servicer hereunder.
SECTION 3.15. Access to Certain Documentation.
The Master Servicer and each Servicer shall provide to the OTS
and the FDIC and to comparable regulatory authorities supervising Holders of
Subordinate Certificates and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding
the related Non-Designated Mortgage Loans required by applicable regulations
of the OTS and the FDIC. Such access shall be afforded without charge, but
only upon reasonable and prior written request and during normal business
hours at the offices designated by the Master Servicer or such Servicer.
Nothing in this Section shall limit the obligation of the Master Servicer or
any Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer
or such Servicer to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section. Nothing in
this Section 3.15 shall require the Master Servicer or any Servicer to
collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business.
SECTION 3.16. Annual Statement as to Compliance.
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
each date on which the Depositor's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or if such day is not a Business Day, the immediately
preceding Business Day), each Servicer shall deliver to the Master Servicer
an Officer's Certificate stating, as to the signer thereof, that (i) a review
of the activities of such Servicer during the preceding calendar year and of
the performance of such Servicer under this Agreement has been made under
such officer's supervision, and (ii) to the best of such officer's knowledge,
based on such review, such Servicer has fulfilled all its obligations under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and the action being taken by
such Servicer to cure such default. Upon each receipt of such Officer's
Certificate from any Servicer, the Master Servicer shall promptly deliver a
copy of such Officer's Certificate to the Depositor, the Rating Agencies, the
Trustee and the Trust Administrator.
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
each date on which the Depositor's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or if such day is not a Business Day, the immediately
preceding Business Day), the Master Servicer shall deliver to the Depositor,
the Rating Agencies, the Trustee and the Trust Administrator an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement has been made
under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, the Master Servicer has fulfilled all its
obligations under this Agreement throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the
action being taken by the Master Servicer to cure such default.
SECTION 3.17. Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
each date on which the Depositor's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or if such day is not a Business Day, the immediately
preceding Business Day), the Master Servicer at its expense shall cause a
nationally or regionally recognized firm of independent public accountants
(who may also render other services to the Master Servicer or any affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trust Administrator and the
Depositor, in the form of Exhibit V-1.
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
each date on which the Depositor's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or if such day is not a Business Day, the immediately
preceding Business Day), each Servicer (other than Xxxxx Fargo) at its
expense shall cause a nationally or regionally recognized firm of independent
public accountants (who may also render other services to such Servicer, the
related Seller or any affiliate thereof) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trust
Administrator, the Master Servicer and the Depositor, to the effect that with
respect to each Servicer (other than Xxxxx Fargo), such firm has examined
certain documents and records relating to the servicing of mortgage loans
which such Servicer is servicing which may include the related Mortgage Loans
or similar mortgage loans, and that, on the basis of such examination,
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Guide for HUD Approved Title II
Approved Mortgagees and Loan Correspondent Programs, nothing has come to
their attention which would indicate that such servicing has not been
conducted in compliance with Accepted Servicing Practices, except for
(a) such exceptions as such firm shall believe to be immaterial, and (b) such
other exceptions as shall be set forth in such statement. In addition each
Servicer shall disclose to such firm all significant deficiencies relating to
such Servicer's compliance with the minimum servicing standards set forth in
this Agreement. In rendering such statement, such firm may rely, as to
matters relating to direct servicing of mortgage loans by Subservicers, upon
comparable statements for examinations conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Guide for HUD Approved Title II Approved Mortgagees and Loan Correspondent
Programs (rendered within one year of such statement) of independent public
accountants with respect to the related Subservicer.
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
each date on which the Depositor's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or if such day is not a Business Day, the immediately
preceding Business Day), Xxxxx Fargo, at its expense, shall cause a
nationally or regionally recognized firm of independent public accountants
(who may also render other services to Xxxxx Fargo, the related Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Depositor, and the Depositor
shall send copies of such statement to each of the Trust Administrator and
the Master Servicer, to the effect that such firm has examined certain
documents and records relating to the servicing of mortgage loans which Xxxxx
Fargo is servicing, which may include the related Mortgage Loans or similar
mortgage loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance with Accepted Servicing Practices, except for (a) such exceptions
as such firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement. In addition, Xxxxx Fargo shall
disclose to such firm all significant deficiencies relating to Xxxxx Fargo's
compliance with the minimum servicing standards set forth in this Agreement.
In rendering such statement, such firm may rely, as to matters relating to
direct servicing of mortgage loans by Subservicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Guide
for HUD Approved Title II Approved Mortgagees and Loan Correspondent Programs
(rendered within one year of such statement) of independent public
accountants with respect to the related Subservicer.
Copies of such statements shall be provided by the Trust
Administrator to any Certificateholder upon request at the Master Servicer's
or the related Servicer's expense, provided such statement is delivered by
the Master Servicer or such Servicer to the Trust Administrator.
SECTION 3.18. Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
Each Servicer shall maintain with responsible companies, at its
own expense, a blanket Fidelity Bond and an Errors and Omissions Insurance
Policy, with broad coverage on all officers, employees or other persons
acting in any capacity requiring such persons to handle funds, money,
documents or papers relating to the related Mortgage Loans ("Servicer
Employees"). Any such Fidelity Bond and Errors and Omissions Insurance Policy
shall be in the form of the Mortgage Banker's Blanket Bond and shall protect
and insure the related Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such Servicer
Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy also
shall protect and insure each Servicer against losses in connection with the
release or satisfaction of a related Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.18 requiring such Fidelity Bond and Errors and Omissions Insurance
Policy shall diminish or relieve a Servicer from its duties and obligations
as set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts
acceptable to FNMA unless the related Servicer has obtained a waiver of such
requirement. Upon the request of the Trust Administrator, the related
Servicer shall cause to be delivered to the Trust Administrator a certificate
of insurance of the insurer and the surety including a statement from the
surety and the insurer that such fidelity bond and insurance policy shall in
no event be terminated or materially modified without 30 days' prior written
notice to the Trust Administrator.
The Master Servicer shall maintain insurance in such amounts
generally acceptable for entities serving as master servicer.
SECTION 3.19. Special Serviced Mortgage Loans.
If directed by the Special Servicer and solely at the Special
Servicer's option, a Servicer (a "Transferring Servicer") shall transfer the
servicing of any Mortgage Loan serviced by the Transferring Servicer which is
90 days or more delinquent (determined as of the close of business of the
last day of the month preceding the related Data Remittance Date) to the
Special Servicer. The Special Servicer shall thereupon assume all of the
rights and obligations of the Transferring Servicer hereunder arising
thereafter and the Transferring Servicer shall have no further rights or
obligations hereunder with respect to such Mortgage Loan (except that the
Special Servicer shall not be (i) liable for losses of the Transferring
Servicer pursuant to Section 3.09 hereof or for any acts or omissions of the
Transferring Servicer hereunder prior to the servicing transfer date,
(ii) obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof, (iii) deemed to have
made any representations and warranties of a Transferring Servicer hereunder
or (iv) be subject to any other agreement not executed by the Special
Servicer). Except as provided in the preceding sentence, the Special
Servicer shall service all Special Serviced Mortgage Loans in accordance with
the servicing standards applicable to SPS as if SPS were the Transferring
Servicer; provided, however, that the obligations of SPS set forth in
Section 8.01(h), Section 8.01(i) and Article XIII of this Agreement shall not
be applicable to the Special Servicer. Upon the transfer of the servicing of
any such Mortgage Loan to the Special Servicer, the Special Servicer shall be
entitled to the related Servicing Fee and other compensation accruing after
the servicing transfer date with respect to such Mortgage Loans pursuant to
Section 3.14.
In connection with the transfer of the servicing of any Mortgage
Loan to the Special Servicer, the Transferring Servicer shall, at the Special
Servicer's expense, deliver to the Special Servicer all documents and records
relating to such Mortgage Loans and an accounting of amounts collected or
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the servicing to the Special Servicer. On the
servicing transfer date, the Special Servicer shall reimburse the
Transferring Servicer for all unreimbursed Advances, Servicing Advances and
Servicing Fees, as applicable, relating to the Mortgage Loans for which the
servicing is being transferred. The Special Servicer shall be entitled to be
reimbursed pursuant to Section 3.08 or otherwise pursuant to this Agreement
for all such Advances, Servicing Advances and Servicing Fees, as applicable,
paid by the Transferring Servicer pursuant to this Section 3.19. In
addition, the Special Servicer shall notify the Master Servicer of such
transfer and the effective date of such transfer, and amend the Mortgage Loan
Schedule to reflect that such Mortgage Loans are Special Serviced Mortgage
Loans.
SECTION 3.20. Indemnification of Servicers and Master Servicer.
Each Servicer agrees to indemnify and hold the Master Servicer
harmless from and against any and all losses, claims, expenses, costs or
liabilities (including attorneys fees and court costs) incurred by the Master
Servicer as a result of or in connection with the failure by such Servicer to
perform the obligations or responsibilities imposed upon or undertaken by
such Servicer under this Agreement.
The Master Servicer agrees to indemnify and hold each Servicer
harmless from and against any and all losses, claims, expenses, costs or
liabilities (including attorneys fees and court costs) incurred by such
Servicer as a result of or in connection with the failure by the Master
Servicer to perform the obligations or responsibilities imposed upon or
undertaken by the Master Servicer under this Agreement.
SECTION 3.21. Notification of Adjustments.
With respect to each Mortgage Loan, the related Servicer shall
adjust the Mortgage Rate on the related Adjustment Date in compliance with
the requirements of applicable law and the related Mortgage and Mortgage
Note. The related Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage
Note and Mortgage regarding the Mortgage Rate adjustments. Upon the
discovery by the related Servicer or the receipt of notice from the Trust
Administrator that such Servicer has failed to adjust a Mortgage Rate in
accordance with the terms of the related Mortgage Note, such Servicer shall
immediately deposit in the Certificate Account from its own funds the amount
of any interest loss or deferral caused the Trust Administrator thereby.
SECTION 3.22. Designated Mortgage Loans.
(a) For and on behalf of the Certificateholders, the Master Servicer shall
oversee and enforce the obligation of each Designated Servicer to service and
administer the related Designated Mortgage Loans in accordance with the terms
of the related Designated Servicing Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable
in connection with such master servicing and administration. In performing
its obligations hereunder, the Master Servicer shall act in a manner
consistent with this Agreement and with customary and usual standards of
practice of prudent mortgage loan master servicers. Furthermore, the Master
Servicer shall oversee and consult with each Designated Servicer as necessary
from time-to-time to carry out the Master Servicer's obligations hereunder,
and shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by each Designated Servicer.
The Master Servicer shall terminate the rights and obligations of
any Designated Servicer under the related Designated Servicing Agreement,
upon the failure of such Designated Servicer to perform any of its
obligations under such Designated Servicing Agreement, which failure results
in an event of default as provided Section 8.01 of the PHH Mortgage
Underlying Servicing Agreement, with respect to PHH Mortgage, as provided
Section 8.01 of the National City Underlying Servicing Agreement, with
respect to National City, as provided in Section 8.01 of the IndyMac
Underlying Servicing Agreement, with respect to IndyMac, as provided in
Section 9.01 of the GMAC Mortgage Underlying Servicing Agreement, with
respect to GMAC Mortgage, as provided in Section 14 of the Countrywide
Underlying Servicing Agreement, with respect to Countrywide, and as provided
in Section 8.01 of the EverBank Underlying Servicing Agreement, with respect
to EverBank. In the event a Designated Servicer is terminated pursuant to
the preceding sentence, the Master Servicer shall notify the Depositor and
the Trust Administrator and shall either (a) select and engage a successor
servicer of the related Mortgage Loans or (b) act as successor servicer of
the related Mortgage Loans. In either case, the Designated Mortgage Loans
related to such Designated Servicing Agreement shall be serviced by the
successor to such Designated Servicer pursuant to the servicing provisions of
this Agreement, and such Designated Mortgage Loans shall be deemed as
"Non-Designated Mortgage Loans" under this Agreement; provided, however, it
is understood and acknowledged by the parties hereto that there will be a
period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to such successor Designated Servicer.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Designated Servicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
provided that the Master Servicer shall not be required to prosecute or
defend any legal action except to the extent that the Master Servicer shall
have received reasonable indemnity for its costs and expenses in pursuing
such action.
To the extent that the costs and expenses of the Master Servicer
related to any termination of a Designated Servicer, appointment of a
successor Designated Servicer or the transfer and assumption of servicing by
the Master Servicer with respect to any Designated Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of a Designated Servicer as a result of an event of default by
such Designated Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all
servicing data and the completion, correction or manipulation of such
servicing data as may be required by the successor servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
successor servicer to service the Mortgage Loans in accordance with this
Agreement) are not fully reimbursed by the terminated Designated Servicer,
the Master Servicer shall be entitled to reimbursement of such costs and
expenses from the Trust.
(b) Each month, if a Designated Servicer fails to make a required Advance
by the date such Advance is required to be made under the related Designated
Servicing Agreement, the Master Servicer shall on the Cash Remittance Date
deposit in the amount of any required Advance in the Certificate Account.
(c) Each month, the Master Servicer shall make Compensating Interest
Payments with respect to the Designated Mortgage Loans to the extent provided
in Section 3.03.
SECTION 3.23. Assigned Prepayment Premiums.
Notwithstanding anything in this Agreement to the contrary, in
the event of a Principal Prepayment, the applicable Servicer may not waive
any Assigned Prepayment Premium or portion thereof required by the terms of
the related Mortgage Note unless (i) the related Mortgage Loan is in default
or foreseeable default and such waiver (a) is standard and customary in
servicing mortgage loans similar to the Mortgage Loans and (b) would, in the
reasonable judgment of such Servicer, maximize recovery of total proceeds
taking into account the value of such Assigned Prepayment Premium and the
related Mortgage Loan, (ii) (A) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law
relating to creditors' rights generally or (2) due to acceleration in
connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable law,
(iii) the enforceability would be considered "predatory" pursuant to written
guidelines issued by any applicable federal, state or local authority having
jurisdiction over such matters, or (iv) such Servicer is unable to locate
documentation sufficient to allow it to confirm the existence and amount of
such Assigned Prepayment Premium after using commercially reasonable efforts
to locate such documentation, which efforts shall include, but are not
limited to, seeking such documentation from the Depositor, the related
Seller, the Custodian and from its own records or files. For the avoidance
of doubt, the applicable Servicer may waive an Assigned Prepayment Premium in
connection with a short sale or short payoff on a defaulted Mortgage Loan.
If an applicable Servicer has waived all or a portion of an Assigned
Prepayment Premium relating to a Principal Prepayment, other than as provided
above, such Servicer shall deliver to the Trust Administrator no later than
the next succeeding Cash Remittance Date, for deposit into the Certificate
Account the amount of such Assigned Prepayment Premium (or such portion
thereof as had been waived) for distribution in accordance with the terms of
this Agreement and if such Servicer fails to deliver such amount, any of the
Trust Administrator, the Master Servicer, the Trustee or the related Seller
may enforce such obligation. If such Servicer has waived all or a portion of
an Assigned Prepayment Premium for any reason, it shall include such
information in any monthly reports it provides, and such Servicer if other
than Xxxxx Fargo Bank, N.A., shall notify the Trust Administrator, the
Sellers, the Master Servicer and the Trustee of such waiver, and if such
Servicer is Xxxxx Fargo Bank, N.A., Xxxxx Fargo Bank, N.A. shall notify the
Trust Administrator and the Trust Administrator shall forward any such notice
to the Sellers, the Master Servicer and the Trustee. Notwithstanding any
provision in this Agreement to the contrary, in the event the Assigned
Prepayment Premium payable under the terms of the related Mortgage Note is
less than the amount of the Assigned Prepayment Premium set forth in the
Mortgage Loan Schedule or other information provided to the applicable
Servicer, such Servicer shall not have any liability or obligation with
respect to such difference. The Master Servicer shall not have any
responsibility for verifying the accuracy of the amount of Assigned
Prepayment Premiums remitted by the Servicers.
Notwithstanding anything in this Agreement to the contrary, the
Trustee and the Trust Administrator shall have no obligation to collect
Prepayment Premiums from any Servicer or Designated Servicer other than Xxxxx
Fargo, in its capacity as a Servicer (or any of its successors and assigns),
or SPS (or any of its successors and assigns).
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Priorities of Distribution.
(I) (A) On each Distribution Date, with respect to the
Group 1, Group 2, Group 3, Group 4 and Class C-B Certificates, the Trust
Administrator shall determine the amounts to be distributed to each Class of
Certificates as follows:
(a) with respect to the Group 1 Certificates, from the Available
Distribution Amount relating to Loan Group 1:
(i) first, concurrently, to the Group 1 Certificates, an amount allocable
to interest equal to the related Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro rata
between such Classes based on the Interest Distribution Amount
that would have been distributed in the absence of such
shortfall; and
(ii) second, on each Distribution Date, from the Available Distribution
Amount for Loan Group 1 remaining after giving effect to the
distributions pursuant to Section 4.01(I)(A)(a)(i) above, the
Group 1 Senior Principal Distribution Amount, as principal,
sequentially, as follows:
(A) first, to the Class AR and Class AR-L Certificates, pro rata based on
their respective Class Principal Balances immediately prior
to such Distribution Date, until their respective Class
Principal Balances are reduced to zero; and
(B) second, the Group 1 Senior Principal Distribution Amount for that
Distribution Date remaining after making the payments
specified in clause (A) above, to the Class 1-A-1,
Class 1-A-2-1 and Class 1-A-2-2 Certificates, pro rata,
based on their respective Class Principal Balances
immediately prior to such Distribution Date, until their
respective Class Principal Balances are reduced to zero.
(b) with respect to the Group 2 Certificates, and from the Available
Distribution Amount relating to Loan Group 2:
(i) first, concurrently, to the Group 2 Certificates, an amount allocable
to interest equal to the related Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro rata
between such Classes based on the Interest Distribution Amount
that would have been distributed in the absence of such
shortfall; and
(ii) second, on each Distribution Date, from the Available Distribution
Amount for Loan Group 2 remaining after giving effect to the
distributions pursuant to Section 4.01(I)(A)(b)(i) above, to the
Class 2-A-1 Certificates, as principal, the Group 2 Senior
Principal Distribution Amount, until its Class Principal Balance
is reduced to zero.
(c) with respect to the Group 3 Certificates, and from the Available
Distribution Amount relating to Loan Group 3:
(i) first, concurrently, to the Group 3 Certificates, an amount allocable
to interest equal to the related Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro rata
between such Classes based on the Interest Distribution Amount
that would have been distributed in the absence of such
shortfall; and
(ii) second, on each Distribution Date, from the Available Distribution
Amount for Loan Group 3 remaining after giving effect to the
distributions pursuant to Section 4.01(I)(A)(c)(i) above, the
Group 3 Senior Principal Distribution Amount, as principal, to
the Class 3-A-1-1 Certificates, the Class 3-A-1-2 Certificates
and the Class 3-A-2, Class 3-A-3-1 and Class 3-A-3-2
Certificates, pro rata, weighted based on the aggregate Class
Principal Balances of such groups of classes (the Class 3-A-1-1
Certificates as one group, the Class 3-A-1-2 Certificates as one
group, and the Class 3-A-2, Class 3-A-3-1 and Class 3-A-3-2
Certificates in the aggregate as one group), as follows:
(A) to the Class 3-A-1-1 Certificates, until
its Class Principal Balance is reduced to zero;
(B) to the Class 3-A-1-2 Certificates, until
its Class Principal Balance is reduced to zero; and
(C) sequentially, first, to the Class 3-A-2
Certificates, until its Class Principal Balance is reduced to
zero, and second, to the Class 3-A-3-1 and Class 3-A-3-2
Certificates, pro rata, based on their respective Class
Principal Balances immediately prior to such Distribution
Date, until their respective Class Principal Balances are
reduced to zero.
(d) with respect to the Group 4 Certificates, and from the Available
Distribution Amount relating to Loan Group 4:
(i) first, concurrently, to the Group 4 Certificates, an amount allocable
to interest equal to the related Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro rata
between such Classes based on the Interest Distribution Amount
that would have been distributed in the absence of such
shortfall; and
(ii) second, on each Distribution Date, from the Available Distribution
Amount for Loan Group 4 remaining after giving effect to the
distributions pursuant to Section 4.01(I)(A)(d)(i) above, to the
Class 4-A-1 and Class 4-A-2 Certificates, as principal, the
Group 4 Senior Principal Distribution Amount, pro rata based on
their respective Class Principal Balances immediately prior to
such Distribution Date, until their respective Class Principal
Balances are reduced to zero.
(e) with respect to the Class C-B and Class AR-L Certificates, from the
Available Distribution Amount relating to Loan Group 1, Loan Group 2,
Loan Group 3 and Loan Group 4 remaining after the distributions
pursuant to Sections 4.01(I)(A)(a) through (d) above, subject to
Sections 4.01(I)(C) below, and further subject to any payments to the
Group 1, Group 2, Group 3 and Group 4 Certificates as described in
Section 4.07, to the following Classes in the following order of
priority:
(i) to the Class C-B-1 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(ii) to the Class C-B-1 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the Class
Principal Balance of Class C-B-1 Certificates is reduced to zero;
(iii) to the Class C-B-2 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(iv) to the Class C-B-2 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the Class
Principal Balance of Class C-B-2 Certificates is reduced to zero;
(v) to the Class C-B-3 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(vi) to the Class C-B-3 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the Class
Principal Balance of Class C-B-3 Certificates is reduced to zero;
(vii) to the Class C-B-4 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(viii) to the Class C-B-4 Certificates, an amount allocable to principal
equal to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class C-B-4 Certificates is reduced to
zero;
(ix) to the Class C-B-5 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(x) to the Class C-B-5 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the Class
Principal Balance of Class C-B-5 Certificates is reduced to zero;
(xi) to the Class C-B-6 Certificates, an amount allocable to interest equal
to the Interest Distribution Amount for such Class for such
Distribution Date;
(xii) to the Class C-B-6 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the Class
Principal Balance of Class C-B-6 Certificates is reduced to zero;
(xiii) to the Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5 and Class C-B-6 Certificates, in that order, up to an
amount of Net Realized Losses for such Class, if any; provided,
however, that any distribution pursuant to this
Section 4.01(I)(A)(e)(xiii) shall not result in a further
reduction of the Class Principal Balance of any of the Class C-B
Certificates; and
(xiv) to the Class AR-L Certificates, any remaining Available Distribution
Amount for Loan Group 1, Loan Group 2, Loan Group 3 or Loan
Group 4 (to the extent such amount is held by REMIC I), or to the
Class AR Certificates, any remaining Available Distribution
Amount for Loan Group 1, Loan Group 2, Loan Group 3 or Loan
Group 4 (to the extent such amount is held by REMIC IV).
(B) On each Distribution Date, the amount referred to in clause
(i) of the definition of Interest Distribution Amount for such Distribution
Date for each Class of Group 1, Group 2, Group 3, Group 4 and Class C-B
Certificates shall be reduced by the Trust Administrator by the related
Class's pro rata share (based on the amount of the Interest Distribution
Amount for each such Class before reduction pursuant to this
Section 4.01(I)(B)) of (i) Net Prepayment Interest Shortfalls for Mortgage
Loans in the related Loan Group for such Distribution Date and (ii) (A) after
the Special Hazard Coverage Termination Date, with respect to each Group 1,
Group 2, Group 3 and Group 4 Mortgage Loan, as applicable, that was the
subject of Special Hazard Loss during the prior calendar month, the excess of
one month's interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over the
amount of Liquidation Proceeds applied as interest on such Mortgage Loan with
respect to such month, (B) after the Bankruptcy Coverage Termination Date,
with respect to each Group 1, Group 2, Group 3 or Group 4 Mortgage Loan, as
applicable, that became subject to a Bankruptcy Loss during the prior
calendar month, the interest portion of the related Debt Service Reduction or
Deficient Valuation, (C) each Relief Act Reduction for any Group 1, Group 2,
Group 3 or Group 4 Mortgage Loan, as applicable, incurred during the prior
calendar month and (D) after the Fraud Loss Coverage Termination Date, with
respect to each Group 1, Group 2, Group 3 or Group 4 Mortgage Loan, as
applicable, that became a Fraud Loan during the prior calendar month the
excess of one month's interest at the related Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month. For purposes of calculating the reduction of the
Interest Distribution Amount for each Class of Class C-B Certificates with
respect to Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group 4 such
reduction shall be based on the amount of interest accruing at the Net WAC
Rate for such Loan Group on such Class's proportionate share, based on the
Class Principal Balance of the related Subordinate Component Balance for that
Distribution Date.
(C) With respect to each Class of Class C-B Certificates, if on
any Distribution Date the related Subordination Level of such Class is less
than such percentage as of the Closing Date, no distribution of Principal
Prepayments will be made to any Class or Classes of Class C-B Certificates
junior to such Class (the "Restricted Classes") and the amount otherwise
distributable to the Restricted Classes in respect of such Principal
Prepayments will be allocated among the remaining Classes of Class C-B
Certificates, pro rata, based upon their respective Class Principal Balances.
(D) The Trust Administrator shall distribute the Mortgage Loan
Purchase Price of any Optional Termination of Loan Group 1, Loan Group 2,
Loan Group 3 and Loan Group 4 in excess of the Par Value to the holder of the
Class AR-L Certificate.
(II) With respect to the Group 5 Certificates:
(a) On each Distribution Date, the Trust Administrator shall distribute the
Interest Remittance Amount for such date in the following order of
priority:
(i) to the Group 5 Senior Certificates, pro rata based on amounts due,
Current Interest and any Carryforward Interest for such Class and
such Distribution Date;
(ii) to the Class 5-M-1 Certificates, Current Interest and any Carryforward
Interest for such Class and such Distribution Date;
(iii) to the Class 5-M-2 Certificates, Current Interest and any Carryforward
Interest for such Class and such Distribution Date;
(iv) to the Class 5-M-3 Certificates, Current Interest and any Carryforward
Interest for such Class and such Distribution Date;
(v) to the Class 5-M-4 Certificates, Current Interest and any Carryforward
Interest for such Class and such Distribution Date;
(vi) to the Class 5-M-5 Certificates, Current Interest and any Carryforward
Interest for such Class and such Distribution Date; and
(vii) for application as part of Monthly Excess Cashflow for such
Distribution Date as provided in Section 4.01(II)(d), any
Interest Remittance Amount remaining for such Distribution Date.
(b) On each Distribution Date (A) prior to the Stepdown Date or (B) with
respect to which a Trigger Event is in effect, the Trust Administrator
shall distribute the Principal Payment Amount for Loan Group 5, plus
with respect to the Distribution Date in December 2005, the amount
remaining, if any, on deposit in the Prefunding Account at the end of
the Prefunding Period, exclusive of investment income thereon, for such
date in the following order of priority:
(i) to the Class 5-A-1 and Class 5-A-2 Certificates, pro rata, based on the
Class Principal Balances of such Classes immediately prior to
such Distribution Date, until their respective Class Principal
Balances are reduced to zero;
(ii) to the Class 5-M-1 Certificates, until its Class Principal Balance is
reduced to zero;
(iii) to the Class 5-M-2 Certificates, until its Class Principal Balance is
reduced to zero;
(iv) to the Class 5-M-3 Certificates, until its Class Principal Balance is
reduced to zero;
(v) to the Class 5-M-4 Certificates, until its Class Principal Balance is
reduced to zero;
(vi) to the Class 5-M-5 Certificates, until its Class Principal Balance is
reduced to zero; and
(vii) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any
Principal Payment Amount remaining after application pursuant to
Section 4.01(II)(b)(i) through (vi) above.
(c) On each Distribution Date (A) on or after the Stepdown Date and
(B) with respect to which a Trigger Event is not in effect, the Trust
Administrator shall distribute the Principal Payment Amount for Loan
Group 5 for such date in the following order of priority:
(i) to the Class 5-A-1 and Class 5-A-2 Certificates, the sum of (1) the
Group 5 Senior Principal Payment Amount and (2) the component of
the Principal Remittance Amount representing payments, if any,
under the Group 5 Interest Rate Cap Agreement to cover Realized
Losses on the Group 5 Mortgage Loans, pro rata, based on the
Class Principal Balances of such Classes immediately prior to
such Distribution Date, until their respective Class Principal
Balances are reduced to zero;
(ii) to the Class 5-M-1 Certificates, the Class 5-M-1 Principal Payment
Amount for such Distribution Date, until its Class Principal
Balance is reduced to zero;
(iii) to the Class 5-M-2 Certificates, the Class 5-M-2 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class is reduced to zero;
(iv) to the Class 5-M-3 Certificates, the Class 5-M-3 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class is reduced to zero;
(v) to the Class 5-M-4 Certificates, the Class 5-M-4 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class is reduced to zero;
(vi) to the Class 5-M-5 Certificates, the Class 5-M-5 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class is reduced to zero;
(vii) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any
Principal Payment Amount remaining after application pursuant to
Section 4.01(II)(c)(i) through (vi) above.
(d) On each Distribution Date, the Trust Administrator shall distribute the
Monthly Excess Cashflow for such date in the following order of
priority:
(i) (A) until the aggregate Class Principal Balance of the Group 5
LIBOR Certificates equals the Aggregate Loan Group Balance for
Loan Group 5 for such Distribution Date minus the Targeted
Overcollateralization Amount for such date, on each
Distribution Date (x) prior to the Stepdown Date or (y) with
respect to which a Trigger Event is in effect, to the extent
of Monthly Excess Interest for such Distribution Date, to the
Group 5 Certificates, in the following order of priority:
(1) to the Class 5-A-1 and Class 5-A-2 Certificates, pro rata, based on the
Class Principal Balances of such Classes immediately
prior to such Distribution Date, until their respective
Class Principal Balances are reduced to zero;
(2) to the Class 5-M-1 Certificates, until its Class Principal Balance is
reduced to zero;
(3) to the Class 5-M-2 Certificates, until its Class Principal Balance is
reduced to zero;
(4) to the Class 5-M-3 Certificates, until its Class Principal Balance is
reduced to zero;
(5) to the Class 5-M-4 Certificates, until its Class Principal Balance is
reduced to zero; and
(6) to the Class 5-M-5 Certificates, until its Class Principal Balance is
reduced to zero;
(B) on each Distribution Date (x) on or after the Stepdown Date and
(y) with respect to which a Trigger Event is not in effect,
to fund any principal distributions required to be made on
such Distribution Date set forth above in
Section 4.01(II)(c) above, after giving effect to the
distribution of the Principal Payment Amount for Loan
Group 5 for such Distribution Date, in accordance with the
priorities set forth therein;
(ii) to the Class 5-A-2 Certificates, any Deferred Amount for such Class;
(iii) to the Class 5-M-1 Certificates, any Deferred Amount for such Class;
(iv) to the Class 5-M-2 Certificates, any Deferred Amount for such Class;
(v) to the Class 5-M-3 Certificates, any Deferred Amount for such Class;
(vi) to the Class 5-M-4 Certificates, any Deferred Amount for such Class;
(vii) to the Class 5-M-5 Certificates, any Deferred Amount for such Class;
(viii) to the Group 5 Senior Certificates, pro rata based on amounts
due, any Basis Risk Shortfall due and owing for each such Class;
(ix) to the Class 5-M-1 Certificates, any Basis Risk Shortfall due and owing
for such Class;
(x) to the Class 5-M-2 Certificates, any Basis Risk Shortfall due and owing
for such Class;
(xi) to the Class 5-M-3 Certificates, any Basis Risk Shortfall due and owing
for such Class;
(xii) to the Class 5-M-4 Certificates, any Basis Risk Shortfall due and owing
for such Class;
(xiii) to the Class 5-M-5 Certificates, any Basis Risk Shortfall due and
owing for such Class;
(xiv) to the Class 5-X Certificates, the Class 5-X Distributable Amount for
such Distribution Date; and
(xv) to the Class AR Certificates, any remaining amount; provided, however,
that any amount that would be distributable pursuant to this
priority (xi) shall not be paid with respect to the Class AR
Certificates but shall be paid instead with respect to the
Class 5-X Certificates pursuant to a contract that exists under
this Agreement between the Class AR Certificateholders and the
Class 5-X Certificateholders.
(e) The Trust Administrator shall distribute the Mortgage Loan Purchase
Price of any Optional Termination of Loan Group 5 in excess of the Par
Value to the holder of the Class AR-L Certificate.
(III) (A) With respect to the Group 6 Certificates:
(a) with respect to the Group 6 Senior Certificates and the Class 6-X
Certificates, from the Available Distribution Amount relating to Loan
Group 6:
(i) first, concurrently, (A) to the Group 6 Senior Certificates and the
Class 6-X Certificates, an amount allocable to interest equal to
the related Interest Distribution Amount for such Distribution
Date, any shortfall being allocated pro rata between such Classes
based on the Interest Distribution Amount that would have been
distributed in the absence of such shortfall; provided, however,
that, notwithstanding the foregoing, accrued interest to be
distributed to the Class 6-X Certificates will be reduced to the
extent necessary to fund amounts required to pay any Basis Risk
Shortfall on the Group 6 Senior Certificates and (B) to the
Group 6 Senior Certificates, amounts in respect of unpaid Basis
Risk Shortfalls for such Classes, pro rata based on amounts due,
but only to the extent of the Class 6-X Distribution Amount for
such Distribution Date; and
(ii) second, on each Distribution Date, from the Available Distribution
Amount for Loan Group 6 remaining after giving effect to the
distributions pursuant to Section 4.01(III)(A)(a)(i) above, the
Group 6 Senior Principal Distribution Amount, as principal, to
the Class 6-A-1, Class 6-A-2-1 and Class 6-A-2-2 Certificates,
pro rata based on their respective Class Principal Balances
immediately prior to such Distribution Date, until their
respective Class Principal Balances are reduced to zero:
(b) with respect to the Group 6-B Certificates, from the Available
Distribution Amount relating to Loan Group 6 remaining after the
distributions pursuant to Section 4.01(III)(A)(a) above, subject to
Section 4.01(III)(C) below, to the following Classes in the following
order of priority:
(i) to the Class 6-B-1 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions pursuant to
Section 4.01(III)(A)(a)(i)(B) above;
(ii) to the Class 6-B-1 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-1 Certificates is reduced to
zero;
(iii) to the Class 6-B-2 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions described in clause (i) above;
(iv) to the Class 6-B-2 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-2 Certificates is reduced to
zero;
(v) to the Class 6-B-3 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions described in clause (iii) above;
(vi) to the Class 6-B-3 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-3 Certificates is reduced to
zero;
(vii) to the Class 6-B-4 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions described in clause (v) above;
(viii) to the Class 6-B-4 Certificates, an amount allocable to principal
equal to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-4 Certificates is reduced to
zero;
(ix) to the Class 6-B-5 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions described in clause (vii) above;
(x) to the Class 6-B-5 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-5 Certificates is reduced to
zero;
(xi) to the Class 6-B-6 Certificates, (A) an amount allocable to interest
equal to the Interest Distribution Amount for such Class for such
Distribution Date and (B) amounts in respect of unpaid Basis Risk
Shortfalls for such Class, but only to the extent of the
Class 6-X Distribution Amount for such Distribution Date
remaining after the distributions described in clause (ix) above;
(xii) to the Class 6-B-6 Certificates, an amount allocable to principal equal
to its Pro Rata Share for such Distribution Date, until the
Class Principal Balance of Class 6-B-6 Certificates is reduced to
zero;
(xiii) to the Class 6-B-1, Class 6-B-2, Class 6-B-3, Class 6-B-4,
Class 6-B-5 and Class 6-B-6 Certificates, in that order, up to an
amount of Net Realized Losses for such Class, if any; provided,
however, that any distribution pursuant to this
Section 4.01(III)(A)(b)(xiii) shall not result in a further
reduction of the Class Principal Balance of any of the Class 6-B
Certificates; and
(xiv) to the Class AR-L Certificates, any remaining Available Distribution
Amount for Loan Group 6 (to the extent such amount is held by
REMIC III), or to the Class AR Certificates, any remaining
Available Distribution Amount for Loan Group 6 (to the extent
such amount is held by REMIC IV).
(B) On each Distribution Date, the amount referred to in clause
(i) of the definition of Interest Distribution Amount for such Distribution
Date for each Class of Group 6 Certificates shall be reduced by the Trust
Administrator by the related Class's pro rata share (based on the amount of
the Interest Distribution Amount for each such Class before reduction
pursuant to this Section) of (i) Net Prepayment Interest Shortfalls for
Mortgage Loans in Loan Group 6 for such Distribution Date; and (ii) (A) after
the Special Hazard Coverage Termination Date, with respect to each Group 6
Mortgage Loan that was the subject of a Special Hazard Loss during the prior
calendar month, the excess of one month's interest at the related Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the
Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Group 6 Mortgage
Loan that became subject to a Bankruptcy Loss during the prior calendar
month, the interest portion of the related Debt Service Reduction or
Deficient Valuation, (C) each Relief Act Reduction for any Group 6 Mortgage
Loan incurred during the prior calendar month and (D) after the Fraud Loss
Coverage Termination Date with respect to each Group 6 Mortgage Loan that
became a Fraud Loan during the prior calendar month the excess of one month's
interest at the related Net Mortgage Rate on the Stated Principal Balance of
such Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month. For purposes of calculating the reduction of the Interest
Distribution Amount for each Class of Class 6-B Certificates with respect to
Loan Group 6, such reduction shall be based on the amount of interest
accruing at the Net WAC Rate for Loan Group 6 on such Class's proportionate
share, based on the Class Principal Balance of the related Subordinate
Component Balance for that Distribution Date.
(C) With respect to each Class of Class 6-B Certificates, if on
any Distribution Date the related Subordination Level of such Class is less
than such percentage as of the Closing Date, no distribution of Principal
Prepayments will be made to any Class or Classes of Class 6-B Certificates
junior to such Class (the "Restricted Classes") and the amount otherwise
distributable to the Restricted Classes in respect of such Principal
Prepayments will be allocated among the remaining Classes of Class 6-B
Certificates, pro rata, based upon their respective Class Principal Balances.
(D) The Trust Administrator shall distribute the Mortgage Loan
Purchase Price of any Optional Termination of Loan Group 6 in excess of the
Par Value to the holder of the Class AR-L Certificate.
(IV) (a) Prior to the distributions described in Sections
4.01(I), (II) and (III), the following distributions shall be deemed to have
been made:
(i) from REMIC I to REMIC IV, as the holder of the
REMIC I Regular Interests, and to Holders of the Class AR-L
Certificates in respect of Component I thereof, from the REMIC I
Available Distribution Amount, the REMIC I Distribution Amount in
the amounts, from the sources and with the character set forth in
the definition thereof in respect of the REMIC I Regular
Interests and Component I of the Class AR-L Certificates as set
forth therein;
(ii) from REMIC II to REMIC IV, as the holder
of the REMIC II Regular Interests, and to Holders of the
Class AR-L Certificates in respect of Component II thereof, from
the REMIC II Available Distribution Amount, the REMIC II
Distribution Amount in the amounts, from the sources and with the
character set forth in the definition thereof in respect of the
REMIC II Regular Interests and Component II of the Class AR-L
Certificates as set forth therein; and
(iii) from REMIC III to REMIC IV, as the holder
of the REMIC III Regular Interests, and to Holders of the
Class AR-L Certificates in respect of Component III thereof, from
the REMIC III Available Distribution Amount, the REMIC III
Distribution Amount in the amounts, from the sources and with the
character set forth in the definition thereof in respect of the
REMIC III Regular Interests and Component III of the Class AR-L
Certificates as set forth therein.
(b) Notwithstanding the distributions on the REMIC
Regular Interests described in this Section 4.01(IV), distribution of
funds from the Certificate Account shall be made only in accordance
with Sections 4.01(I), (II) and (III).
(V) On each Distribution Date, the Trustee shall distribute to
the Holder of the Class P Certificates, the aggregate of all Assigned
Prepayment Premiums for Mortgage Loans collected or paid by each applicable
Servicer with respect to the related Prepayment Period.
SECTION 4.02. Allocation of Losses.
(a) Realized Losses on the Mortgage Loans in each of Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4 incurred during a calendar month shall
be allocated by the Trust Administrator to the Classes of Certificates on the
Distribution Date in the next calendar month as follows:
(i) any Realized Loss, other than an Excess Loss, shall be allocated first,
to the Class C-B Certificates, in decreasing order of their
alphanumerical Class designations (beginning with the Class C-B-6
Certificates), until the respective Class Principal Balance of each
such Class is reduced to zero, and second, to the Senior Certificates
of the related Certificate Group, pro rata, on the basis of their
respective Class Principal Balances, until the respective Class
Principal Balance of each such Class is reduced to zero; provided,
however, with respect to the Group 1 Certificates, Realized Losses on
the Group 1 Loans that would otherwise be allocated to the
Class 1-A-2-1 and Class 1-A-2-2 Certificates in the aggregate, will
instead be allocated first, to the Class 1-A-2-2 Certificates, until
its Class Principal Balance is reduced to zero, and second, to the
Class 1-A-2-1 Certificates, until its Class Principal Balance is
reduced to zero; with respect to the Group 3 Certificates, Realized
Losses on the Group 3 Loans that would otherwise be allocated to the
Class 3-A-1-1 Certificates and Class 3-A-1-2 Certificates in the
aggregate, will instead be allocated first, to the Class 3-A-1-2
Certificates, until its Class Principal Balance is reduced to zero and
second, to the Class 3-A-1-1 Certificates, until its Class Principal
Balance is reduced to zero, and Realized Losses on the Group 3 Loans
that would otherwise be allocated to the Class 3-A-3-1 Certificates and
Class 3-A-3-2 Certificates in the aggregate, will instead be allocated
first, to the Class 3-A-3-2 Certificates, until its Class Principal
Balance is reduced to zero and second, to the Class 3-A-3-1
Certificates, until its Class Principal Balance is reduced to zero; and
with respect to the Group 4 Certificates, Realized Losses on the
Group 4 Loans that would otherwise be allocated to the Class 4-A-1
Certificates and Class 4-A-2 Certificates in the aggregate, will
instead be allocated first, to the Class 4-A-2 Certificates, until its
Class Principal Balance is reduced to zero and second, to the
Class 4-A-1 Certificates, until its Class Principal Balance is reduced
to zero; and
(ii) Excess Losses in respect of principal for Mortgage Loans in Loan
Group 1, Loan Group 2, Loan Group 3 and Loan Group 4 will be allocated
among all Group 1, Group 2, Group 3, Group 4 and Class C-B
Certificates, pro rata based on their respective Class Principal
Balances.
(b) On each Distribution Date, if the aggregate Class Principal Balance of
all Group 1, Group 2, Group 3, Group 4 and Class C-B Certificates exceeds the
Aggregate Groups 1-4 Collateral Balance (after giving effect to distributions
of principal and the allocation of all losses to such Certificates on such
Distribution Date), such excess will be deemed a principal loss and will be
allocated by the Trust Administrator to the most junior Class of Class C-B
Certificates then outstanding.
(c) Any Realized Loss allocated to a Class of Certificates or any reduction
in the Class Principal Balance of a Class of Certificates pursuant to
Section 4.02(b) shall be allocated by the Trust Administrator among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation by the Trust Administrator of Realized Losses to a
Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02(b) shall be accomplished by reducing the Certificate
Balance thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
(e) On each Distribution Date, the Trust Administrator shall determine the
total Applied Loss Amount with respect to the Group 5 Certificates, if any,
for such Distribution Date. The Applied Loss Amount with respect to the
Group 5 Certificates for any Distribution Date shall be applied by reducing
the Class Principal Balance of each Class of Class M Certificates and the
Class 5-A-2 Certificates, beginning with the Class of Class M Certificates,
then outstanding with the lowest relative payment priority, or if no Class M
Certificates are then outstanding, the Class 5-A-2 Certificates, in each case
until the respective Class Principal Balance thereof is reduced to zero. Any
Applied Loss Amount with respect to the Group 5 Certificates allocated to a
Class of Class M Certificates or Class 5-A-2 Certificates shall be allocated
among the Class M Certificates of such Class or the Class 5-A-2 Certificates,
as applicable, in proportion to their respective Percentage Interests.
(f) Realized Losses on the Mortgage Loans in Loan Group 6 incurred during a
calendar month shall be allocated by the Trust Administrator to the Classes
of Certificates on the Distribution Date in the next calendar month as
follows:
(i) any Realized Loss, other than an Excess Loss, shall be allocated first,
to the Class 6-B Certificates, in decreasing order of their
alphanumerical Class designations (beginning with the Class 6-B-6
Certificates), until the respective Class Principal Balance of each
such Class is reduced to zero, and second, to the Group 6 Senior
Certificates, pro rata, on the basis of their respective Class
Principal Balances, until the respective Class Principal Balance of
each such Class is reduced to zero; provided, however, that the portion
of Realized Losses on the Group 6 Loans that would otherwise be
allocated to the Class 6-A-2-1 and Class 6-A-2-2 Certificates in the
aggregate, will instead be allocated first, to the Class 6-A-2-2
Certificates, until its Class Principal Balance is reduced to zero, and
second, to the Class 6-A-2-1 Certificates, until its Class Principal
Balance is reduced to zero; and
(ii) Excess Losses in respect of principal for Mortgage Loans in Loan
Group 6 will be allocated among all Group 6 Certificates (other than
the Class 6-X Certificates), pro rata based on their respective Class
Principal Balances.
(g) On each Distribution Date, if the aggregate Class Principal Balance of
all Group 6 Certificates (other than the Class 6-X Certificates) exceeds the
Aggregate Loan Group Balance for Loan Group 6 (after giving effect to
distributions of principal and the allocation of all losses to such
Certificates on such Distribution Date), such excess will be deemed a
principal loss and will be allocated by the Trust Administrator to the most
junior Class of Class 6-B Certificates then outstanding.
(h) Any Realized Loss allocated to a Class of Certificates or any reduction
in the Class Principal Balance of a Class of Certificates pursuant to
Section 4.02(g) shall be allocated by the Trust Administrator among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(i) Any allocation by the Trust Administrator of Realized Losses to a
Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02(g) shall be accomplished by reducing the Certificate
Balance thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
(j) All Realized Losses on the Group 1, Group 2, Group 3 and Group 4
Mortgage Loans shall be allocated on each Distribution Date to the REMIC I
Regular Interests as provided in the definition of REMIC I Realized Losses.
(k) All Realized Losses on the Group 5 Mortgage Loans shall be allocated on
each Distribution Date to the REMIC II Regular Interests as provided in the
definition of REMIC II Realized Losses. Realized Losses on the Group 5
Mortgage Loans that are not Applied Loss Amounts shall be deemed allocated to
the Class 5-X Certificates. Realized Losses allocated to the Class 5-X
Certificates shall be allocated between the REMIC IV Regular Interests 5-X-IO
and 5-X-PO as provided in the definition of Realized Losses.
(l) All Realized Losses on the Group 6 Mortgage Loans shall be allocated on
each Distribution Date to the REMIC III Regular Interests as provided in the
definition of REMIC III Realized Losses.
(m) Realized Losses shall be allocated among the REMIC I, REMIC II,
REMIC III and REMIC IV Regular Interests as specified in the definition of
Realized Losses and, as to REMIC I, REMIC II and REMIC III Regular Interests,
in the definitions of REMIC I Realized Losses, REMIC II Realized Losses and
REMIC III Realized Losses, respectively.
SECTION 4.03. Recoveries.
(a) With respect to any Class of Certificates to which a Realized Loss or
Applied Loss Amount, as applicable, has been allocated (including any such
Class for which the related Class Principal Balance is reduced to zero), the
Class Principal Balance of such Class will be increased, up to the amount of
related Recoveries for such Distribution Date as follows:
(i) with respect to Recoveries on Group 1, Group 2, Group 3 and Group 4
Mortgage Loans,
(A) first, the Class Principal Balance of each Class of Senior Certificates
related to the Loan Group from which the Recovery was collected,
will be increased pro rata, up to the amount of Net Recovery
Realized Losses for each such Class, and
(B) second, the Class Principal Balance of each Class of Class C-B
Certificates will be increased in order of seniority, up to the
amount of Net Recovery Realized Losses for each such Class;
(ii) with respect to Recoveries on Group 5 Mortgage Loans, the Class
Principal Balance of the Class 5-A-2 Certificates and each Class of
Class M Certificates will be increased in order of seniority, up to the
Deferred Amount such Class is entitled to receive pursuant to
Section 4.01(II)(d) on such Distribution Date prior to giving effect to
payments pursuant to Section 4.01(II)(d) on such Distribution Date; or
(iii) with respect to Recoveries on Group 6 Mortgage Loans,
(A) first, the Class Principal Balance of each Class of Group 6 Senior
Certificates will be increased pro rata, up to the amount of Net
Recovery Realized Losses for each such Class, and
(B) second, the Class Principal Balance of each Class of Class 6-B
Certificates will be increased in order of seniority, up to the
amount of Net Recovery Realized Losses for each such Class.
(b) Any increase to the Class Principal Balance of a Class of Certificates
shall increase the Certificate Balance of the related Class pro rata in
accordance with each Certificate Percentage Interest.
SECTION 4.04. Reserved.
SECTION 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trust Administrator shall
prepare and cause to be made available to each Certificateholder, the Master
Servicer, each Servicer, the Trustee, the Depositor, and each Rating Agency,
a statement setting forth with respect to the related distribution: (A) the
items listed in Exhibit S, other than items (vi)(a), (vi)(b), (vi)(c) and
(vi)(d), (B) the amounts on deposit in each Prefunding Account (including a
breakdown of amounts released during the prior calendar month in respect of
Aggregate Subsequent Transfer Amounts) and (C) the amount on deposit in each
Capitalized Interest Account (including a breakdown of amounts released for
the calendar month preceding such Distribution Date).
The Trust Administrator's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and each Servicer, which shall be provided as required in Section 4.06.
On each Distribution Date, the Trust Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each
Class of Offered Certificates as of such Distribution Date, using a format
and media mutually acceptable to the Trust Administrator and Bloomberg. In
connection with providing the information specified in this Section 4.05 to
Bloomberg, the Trust Administrator and any director, officer, employee or
agent of the Trust Administrator shall be indemnified and held harmless by
DLJMC, to the extent, in the manner and subject to the limitations provided
in Section 9.05. The Trust Administrator will also make the monthly
statements to Certificateholders available each month to each party referred
to in Section 4.05(a) via the Trust Administrator's website. The Trust
Administrator's website can be accessed at xxxx://xxx.xxxxxxx.xxx or at such
other site as the Trust Administrator may designate from time to time.
Persons that are unable to use the above website are entitled to have a paper
copy mailed to them via first class mail by calling the Trust Administrator
at 000-000-0000. The Trust Administrator shall have the right to change the
way the reports referred to in this Section are distributed in order to make
such distribution more convenient and/or more accessible to the above parties
and to the Certificateholders. The Trust Administrator shall provide timely
and adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall have no liability with respect to information provided by the Master
Servicer or any Servicer.
(b) Upon request, within a reasonable period of time after the end of each
calendar year, the Trust Administrator shall cause to be furnished to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in items (i)(c), (i)(d),
(i)(g), (i)(j), (i)(k), (ii)(c), (ii)(d), (ii)(g), (ii)(j), (v)(a), (v)(b),
(v)(l), (v)(m) and (v)(n) of Exhibit S aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trust Administrator pursuant to any requirements of the Code
as from time to time in effect.
SECTION 4.06. Servicer to Cooperate.
Each Servicer shall provide to the Master Servicer the
information set forth in Exhibit H, and any other information the Master
Servicer requires, in such form as the Master Servicer shall reasonably
request, or in such form as may be mutually agreed upon between such Servicer
and the Master Servicer, with respect to each Mortgage Loan serviced by such
Servicer no later than (i) with respect to a Servicer other than Xxxxx Fargo,
twelve noon on the Data Remittance Date, and (ii) with respect to Xxxxx
Fargo, on the Data Remittance Date, to enable the Master Servicer to provide
such information to the Trust Administrator.
The Master Servicer, with respect to the Mortgage Loans, shall
provide to the Trust Administrator the information set forth in Exhibit H in
such form as the Trust Administrator shall reasonably request no later than
twelve noon on the Data Remittance Date to enable the Trust Administrator to
calculate the amounts to be distributed to each Class of Certificates and
otherwise perform its distribution, accounting and reporting requirements
hereunder.
SECTION 4.07. Cross-Collateralization; Adjustments to Available Funds.
(a) On each Distribution Date prior to the Class C-B Credit Support
Depletion Date, but after the date on which the aggregate Class Principal
Balance of the Group 1, Group 2, Group 3 or Group 4 Certificates is reduced
to zero, the Trust Administrator shall distribute the principal portion of
Available Distribution Amount on the Mortgage Loans relating to such Senior
Certificates that will have been paid in full, to the holders of the Senior
Certificates of the other Certificate Group(s). Such amount will be
allocated between the other Groups, pro rata, based on aggregate Class
Principal Balance of the related Senior Certificates and paid the Senior
Certificates in each such Group in the same priority as such Certificates
would receive other distributions of principal pursuant to
Section 4.01(I)(A); provided, however, that the Trust Administrator shall not
make such distribution on such Distribution Date if (a) the Class C-B
Percentage for such Distribution Date is greater than or equal to 200% of
such Class C-B Percentage as of the Closing Date and (b) the average
outstanding principal balance of the Mortgage Loans in each Loan
Group delinquent 60 days or more over the last six months, as a percentage of
the related Subordinate Component Balance, is less than 50%.
(b) If on any Distribution Date the aggregate Class Principal Balance of
the Group 1, Group 2, Group 3 or Group 4 Certificates is greater than the
Aggregate Loan Group Balance of the related Loan Group (each Loan
Group related to such Group of Certificates, an "Undercollateralized Group"),
then the Trust Administrator shall reduce the Available Distribution Amount
of the other Loan Group(s) that is not undercollateralized (each, an
"Overcollateralized Group"), as follows:
(1) to add to the Available Distribution Amount of the Undercollateralized
Group(s) an amount equal to the lesser of (a) one month's interest on
the Principal Transfer Amount of the Undercollateralized Group(s) at
the Net WAC Rate applicable to the Undercollateralized Group(s) and
(b) Available Distribution Amount of the Overcollateralized Groups
remaining after making interest distributions to the Senior
Certificates of the Overcollateralized Group(s) on such Distribution
Date pursuant to Section 4.01; and
(2) to the Senior Certificates of each Undercollateralized Group, to the
extent of the principal portion of Available Distribution Amount of the
Overcollateralized Group(s) remaining after making interest and
principal distributions to the Senior Certificates of the
Overcollateralized Group(s) on such Distribution Date pursuant to
Section 4.01, until the Class Principal Balance of the Senior
Certificates of such Undercollateralized Group(s) equals the Aggregate
Loan Group Balance of the related Loan Group(s). Payments shall be
made to the Senior Certificates in each Group in the same priority as
such Certificates would receive other distributions of principal
pursuant to Section 4.01(I)(A).
(c) If more than one Overcollateralized Group exists on any Distribution
Date, reductions in the Available Distribution Amount of such Groups to make
the payments required to be made pursuant to Section 4.07(b) on such
Distribution Date shall be made pro rata, based on the Overcollateralization
Amount of each Overcollateralized Group. If more than one
Undercollateralized Group exists on any Distribution Date, payments made to
such Groups from the Available Distribution Amount of the Overcollateralized
Group shall be made pro rata, based on the amount of payments required to be
made to the Undercollateralized Group(s).
SECTION 4.08. Reserved.
SECTION 4.09. Group 6 Basis Risk Reserve Fund.
(a) On the Closing Date, the Trust Administrator shall establish and
maintain in its name, in trust for the benefit of the Holders of the Group 6
Certificates, the Group 6 Basis Risk Reserve Fund and the Depositor shall
deposit the amount of $215,000 therein. The Group 6 Basis Risk Reserve Fund
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including without limitation, other moneys held by the Trust Administrator
pursuant to this Agreement. On and after the Distribution Date in October
2006, the Depositor may elect to terminate the Group 6 Basis Risk Reserve
Fund and request that the Trust Administrator withdraw all amounts on deposit
therein at such time. Upon receipt of such a request, the Trust
Administrator shall withdraw all amounts then on deposit in the Group 6 Basis
Risk Reserve and distribute such amounts to the Depositor.
(b) On each Distribution Date, the Trust Administrator shall distribute
amounts on deposit in the Group 6 Basis Risk Reserve Fund to pay to the
Group 6 LIBOR Certificates, pro rata based upon amounts due thereon, any
applicable Basis Risk Shortfalls remaining after giving effect to any amounts
available to be paid in respect of related Basis Risk Shortfalls as described
in Sections 4.01(III)(a) and (b) from the Class 6-X Distribution Amount on
such Distribution Date.
(c) Funds in the Group 6 Basis Risk Reserve Fund may be invested in
Eligible Investments by the Trust Administrator at the direction of the
Depositor maturing on or prior to the next succeeding Distribution Date. The
Trust Administrator shall account for the Group 6 Basis Risk Reserve Fund as
an outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
and not an asset of any REMIC created pursuant to this Agreement. The Trust
Administrator shall treat amounts paid by the Group 6 Basis Risk Reserve Fund
as payments made from outside the REMIC's for all Federal tax purposes. Any
net investment earnings on such amounts shall be payable to the Depositor.
The Depositor will be the owner of the Group 6 Basis Risk Reserve Fund for
federal tax purposes and the Depositor shall direct the Trust Administrator
in writing as to the investment of amounts therein. In the absence of such
written direction, all funds in the Group 6 Basis Risk Reserve Fund may be
invested by the Trust Administrator in the Xxxxx Fargo Advantage Prime
Investment Money Market Fund or any successor fund. The Trust Administrator
shall have no liability for losses on investments in Eligible Investments
made pursuant to this Section 4.09(c) (other than as obligor on any such
investments). Upon termination of the Trust Fund, any amounts remaining in
the Group 6 Basis Risk Reserve Fund shall be distributed to the Depositor.
SECTION 4.10. Group 5 Interest Rate Cap Account.
(a) On the Closing Date, the Trust Administrator shall establish and
maintain in its name, in trust for the benefit of the Holders of the
Class 5-X Certificates, the Group 5 Interest Rate Cap Account. The Group 5
Interest Rate Cap Account shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with, any other moneys, including without limitation, other moneys held by
the Trust Administrator pursuant to this Agreement.
(b) On each Distribution Date on and after the Distribution Date in
October 2005 and on and prior to the Distribution Date in September 2010, the
Trust Administrator shall deposit any amounts paid under the Group 5 Interest
Rate Cap Agreement into the Group 5 Interest Rate Cap Account. On each
Distribution Date on and after the Distribution Date in October 2005 and on
and prior to the Distribution Date in September 2010, the Trust Administrator
shall distribute amounts on deposit in the Group 5 Interest Rate Cap Account
to pay to the Group 5 Certificates, any applicable Basis Risk Shortfalls,
prior to giving effect to any amounts available to be paid in respect of
related Basis Risk Shortfalls as described in Section 4.01(II)(d)(vi) on such
Distribution Date
(c) On any Distribution Date amounts on deposit in the Group 5 Interest
Rate Cap Account shall be distributed in the following order of priority:
(i) to Group 5 Senior Certificates, pro rata, the amount of any unpaid
Basis Risk Shortfalls for such Class;
(ii) sequentially, to the Class 5-M-1, Class 5-M-2, Class 5-M-3, Class 5-M-4
and Class 5-M-5 Certificates, in that order, the amount of any unpaid
Basis Risk Shortfalls for such Class;
(iii) to the Principal Remittance Amount for Loan Group 5, up to the amount
of Realized Losses on the Mortgage Loans in such Loan Group incurred
during the related Collection Period, any shortfall to be allocated pro
rata based upon the amount of such Realized Losses applicable to such
Loan Group; and
(iv) sequentially, to the Class 5-A-2, Class 5-M-1, Class 5-M-2,
Class 5-M-3, Class 5-M-4 and Class 5-M-5 Certificates, in that order,
any applicable Deferred Amounts, with interest therein at the
applicable Pass-Through Rate, prior to giving effect to amounts
available to be paid in respect of Deferred Amounts as described in
Section 4.01(II)(d)(ii)-(vi) on such Distribution Date.
(d) Funds in the Group 5 Interest Rate Cap Account may be invested in
Eligible Investments by the Trust Administrator at the direction of the
Depositor maturing on or prior to the next succeeding Distribution Date. The
Trust Administrator shall account for the Group 5 Interest Rate Cap Account
as an outside reserve fund within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to this
Agreement. The Trust Administrator shall treat amounts paid by the Group 5
Interest Rate Cap Account as payments made from outside the REMIC's for all
Federal tax purposes. Any net investment earnings on such amounts shall be
payable to the Depositor. The Depositor will be the owner of the Group 5
Interest Rate Cap Account for federal tax purposes and the Depositor shall
direct the Trust Administrator in writing as to the investment of amounts
therein. In the absence of such written direction, all funds in the Group 5
Interest Rate Cap Account may be invested by the Trust Administrator in the
Xxxxx Fargo Advantage Prime Investment Money Market Fund or any successor
fund. The Trust Administrator shall have no liability for losses on
investments in Eligible Investments made pursuant to this
Section 4.10(c) (other than as obligor on any such investments). Upon
termination of the Trust Fund, any amounts remaining in the Group 5 Interest
Rate Cap Account shall be distributed to the Class 5-X Certificateholders.
(e) On the Distribution Date immediately after the Distribution Date on
which the aggregate Class Principal Balance of the Group 5 Certificates
equals zero, any amounts on deposit in the Group 5 Interest Rate Cap Account
not payable on the Group 5 Certificates shall be distributed to the Class 5-X
Certificateholders.
(f) Amounts paid under the Group 5 Interest Rate Cap Agreement not used on
any Distribution Date as described in Section 4.10(b) shall remain on deposit
in the Group 5 Interest Rate Cap Account and may be available on future
Distribution Dates to make the payments described in Section 4.10(b).
However, at no time shall the amount on deposit in the Group 5 Interest Rate
Cap Account exceed the related Deposit Amount. The "Deposit Amount" with
respect to the Group 5 Interest Rate Cap Account will be calculated on each
Distribution Date, after giving effect to withdrawals from the Group 5
Interest Rate Cap Account on such Distribution Date and distributions and
allocation of losses on the Certificates on such Distribution Date, and will
equal the excess, if any, of the Targeted Overcollateralization Amount for
such Distribution Date over the Overcollateralization Amount for such
Distribution Date. On each Distribution Date, the Trust Administrator shall
distribute amounts in the Group 5 Interest Rate Cap Account in excess of the
related Deposit Amount to the Class 5-X Certificateholders.
(g) The Trustee is hereby directed, on or prior to the Closing Date, on
behalf of the Trust, to enter into the Group 5 Interest Rate Cap Agreement
for the benefit of the Holders of the Group 5 Certificates, in the form
presented to it by the Depositor. The Trustee shall not have any
responsibility for the contents, adequacy or sufficiency of the Group 5
Interest Rate Cap Agreement, including, without limitation, any
representations and warranties contained therein.
ARTICLE V
ADVANCES BY THE MASTER SERVICER AND SERVICERS
SECTION 5.01. Advances by the Master Servicer and Servicers.
With respect to the Non-Designated Mortgage Loans, each Servicer
shall deposit in the related Collection Account as Advances an amount equal
to all Scheduled Payments (with interest at the Mortgage Rate less the
Servicing Fee Rate) which were due on such Non-Designated Mortgage Loans
serviced by it during the applicable Collection Period and which were
delinquent at the close of business on the immediately preceding
Determination Date; provided, however, that with respect to any Balloon Loan
that is delinquent on its maturity date, a Servicer will not be required to
advance the related balloon payment but will be required to continue to make
Advances in accordance with this Section 5.01 with respect to such Balloon
Loan in an amount equal to an assumed scheduled payment that would otherwise
be due based on the original amortization schedule for that Mortgage Loan
(with interest at the Mortgage Rate less the Servicing Fee Rate). Each
Servicer's obligation to make such Advances as to any related Non-Designated
Mortgage Loan will continue through the last Scheduled Payment due prior to
the payment in full of such Non-Designated Mortgage Loan, or through the date
that the related Mortgaged Property has, in the judgment of the related
Servicer, been completely liquidated. Each Servicer shall not be required to
advance shortfalls of principal or interest resulting from the application of
the Relief Act.
With respect to any Non-Designated Mortgage Loan, to the extent
required by Accepted Servicing Practices, the Master Servicer and each
Servicer shall be obligated to make Advances in accordance with the
provisions of this Agreement; provided, however, that such obligation with
respect to any related Non-Designated Mortgage Loan shall cease if the Master
Servicer or a Servicer determines, in its reasonable opinion, that Advances
with respect to such Non-Designated Mortgage Loan are Nonrecoverable
Advances. In the event that the Master Servicer or such Servicer determines
that any such Advances are Nonrecoverable Advances, the Master Servicer or
such Servicer shall provide the Trust Administrator with a certificate signed
by a Servicing Officer evidencing such determination.
With respect to any Non-Designated Mortgage Loan, if the amount
of Advances received from a Servicer is less than the amount required to be
advanced by such Servicer, the Master Servicer shall be obligated to make a
payment in an amount equal to such deficiency, subject to any determination
by the Master Servicer that any portion of the amount required to be advanced
is a Nonrecoverable Advance.
With respect to any of the Non-Designated Mortgage Loans, if an
Advance is required to be made hereunder by a Servicer, such Servicer shall
on the Cash Remittance Date either (i) deposit in the Collection Account from
its own funds an amount equal to such Advance, (ii) cause to be made an
appropriate entry in the records of the Collection Account that funds in such
account being held for future distribution or withdrawal have been, as
permitted by this Section 5.01, used by such Servicer to make such Advance or
(iii) make Advances in the form of any combination of clauses (i) and
(ii) aggregating the amount of such Advance. Any such funds being held in a
Collection Account for future distribution and so used shall be replaced by
such Servicer from its own funds by deposit in such Collection Account on or
before any future Distribution Date in which such funds would be due or from
other funds in such Collection Account being held for future distribution at
that time.
With respect to any Designated Mortgage Loan, the Master Servicer
shall make Advances as required by Section 3.22(b) of this Agreement.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The Certificates.
The Certificates shall be in substantially the forms set forth in
Xxxxxxxx X, X, X, X-0, X-0, E and F hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trust
Administrator or the Depositor be necessary, appropriate or convenient to
comply, or facilitate compliance, with applicable laws, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange on which any of the Certificates may be listed, or as
may, consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
Subject to Section 11.03 respecting the final distribution on the
Certificates, on each Distribution Date the Trust Administrator shall make
distributions to each Certificateholder of record on the preceding Record
Date either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate
facilities therefore, if (i) such Holder has so notified the Trust
Administrator at least five Business Days prior to the related Record Date
and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B) 100%
of the Class Principal Balance of any Class of Certificates or
(c) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be
in excess of the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Administrator by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trust Administrator shall bind the Trust Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or
did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trust Administrator by manual signature, and
such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 6.02. Registration of Transfer and Exchange of Certificates.
(a) The Trust Administrator shall maintain, or cause to be maintained, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trust Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any Certificate,
the Trust Administrator shall execute, authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Certificates in
like aggregate interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of authorized denominations and the same aggregate
interest in the Trust Fund and of the same Class, upon surrender of the
Certificates to be exchanged at the office or agency of the Trust
Administrator set forth in Section 6.06. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by the Holder thereof or his attorney duly authorized in writing.
(c) No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but 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 may be required.
(d) All Certificates surrendered for registration of transfer and exchange
shall be canceled and subsequently destroyed by the Trust Administrator in
accordance with the Trust Administrator's customary procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate or any transfer of a
Private Certificate from the Depositor or an affiliate of the Depositor to an
owner trust or other entity established by the Depositor, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit L (the "Transferor Certificate") and
(i) deliver a letter in substantially the form of either (A) Exhibit M-1 (the
"Investment Letter"), provided that all of the Private Certificates of a
Class shall be transferred to one investor or the Depositor otherwise
consents to such transfer, or (B) Exhibit M-2 (the "Rule 144A Letter") or
(ii) there shall be delivered to the Trust Administrator at the expense of
the transferor an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the 1933 Act. The Depositor shall provide to any Holder
of a Private Certificate and any prospective transferee designated by any
such Holder, information regarding the related Certificates and the Mortgage
Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any
such Certificate without registration thereof under the 1933 Act pursuant to
the registration exemption provided by Rule 144A. The Trust Administrator
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor
such information regarding the Certificates, the Mortgage Loans and other
matters regarding the Trust Fund as the Depositor shall reasonably request to
meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust Administrator, the Depositor, the Sellers, the Master
Servicer, each Servicer and the Special 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.
(f) Except in connection with any transfer of a Private Certificate by the
Depositor to any affiliate or any transfer of a Private Certificate from the
Depositor or an affiliate of the Depositor to an owner trust or other entity
established by the Depositor, no transfer of an ERISA-Restricted Certificate
(except for the Residual Certificates) shall be made unless the Trust
Administrator shall have received in accordance with Exhibit M-1 or
Exhibit M-2, as applicable, either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, or a person using the assets of any such
plan or arrangement, which representation letter shall not be an expense of
the Trustee, the Trust Administrator or the Trust Fund, (ii) if the purchaser
is an insurance company and the Certificate has been the subject of an
ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"))
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan or
arrangement subject to Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a person using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trust Administrator to the effect that the purchase or holding of such
Certificate will not result in prohibited transactions under Section 406 of
ERISA and/or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Trust Administrator, the Master Servicer or any other Servicer
to any obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of such parties or the Trust
Fund. No transfer of a Residual Certificate shall be made unless the Trust
Administrator shall have received, in accordance with Exhibit N, a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trust Administrator, to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
using the assets of any such plan or arrangement, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund. In the event the representations referred to in this
Section 6.02(f) are not furnished, such representations shall be deemed to
have been made to the trustee by the transferee's acceptance of such
ERISA-Restricted Certificate by any beneficial owner who purchases an
interest in such Certificate in book-entry form. In the event that a
representation is violated, or any attempt to transfer an ERISA-Restricted
Certificate to a plan or arrangement or person using a plan's or
arrangement's assets is attempted without the delivery to the Trust
Administrator of the Opinion of Counsel described above, the attempted
transfer or acquisition of such Certificate shall be void and of no effect.
(g) Additional restrictions on transfers of the Class AR and Class AR-L
Certificates are set forth below:
(i) Each Person who has or who acquires any ownership interest in a
Class AR or Class AR-L Certificate shall be deemed by the acceptance or
acquisition of such ownership interest to have agreed to be bound by
the following provisions and to have irrevocably authorized the Trust
Administrator or its designee under clause (iii)(A) below to deliver
payments to a Person other than such Person and to negotiate the terms
of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
ownership interest in a Class AR or Class AR-L Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership interest in a Class AR
or Class AR-L Certificate shall be other than a Disqualified
Organization and shall promptly notify the Trust Administrator of
any change or impending change in its status as other than a
Disqualified Organization.
(B) In connection with any proposed transfer of any ownership interest in a
Class AR or Class AR-L Certificate to a U.S. Person, the Trust
Administrator shall require delivery to it, and shall not register
the transfer of a Class AR or Class AR-L Certificate until its
receipt of (1) an affidavit and agreement (a "Transferee Affidavit
and Agreement" attached hereto as Exhibit N) from the proposed
transferee, in form and substance satisfactory to the Trust
Administrator, representing and warranting, among other things, that
it is not a non U.S. Person, that such transferee is other than a
Disqualified Organization, that it is not acquiring its ownership
interest in a Class AR or Class AR-L Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person who is not other than a Disqualified Organization, that for
so long as it retains its ownership interest in a Class AR or
Class AR-L Certificate, it will endeavor to remain other than a
Disqualified Organization, and that it has reviewed the provisions
of this Section 6.02(g) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit O, from the Holder wishing
to transfer a Class AR or Class AR-L Certificate, in form and
substance satisfactory to the Trust Administrator, representing and
warranting, among other things, that no purpose of the proposed
transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit and Agreement by
a proposed transferee under clause (B) above, if the Trust
Administrator has actual knowledge that the proposed transferee is
not other than a Disqualified Organization, no transfer of an
ownership interest in a Class AR or Class AR-L Certificate to such
proposed transferee shall be effected.
(D) Each Person holding or acquiring any ownership interest in a Class AR
or Class AR-L Certificate agrees, by holding or acquiring such
ownership interest, to require a Transferee Affidavit and Agreement
from the other Person to whom such Person attempts to transfer its
ownership interest and to provide a certificate to the Trust
Administrator in the form attached hereto as Exhibit O.
(ii) The Trust Administrator shall register the transfer of any Class AR or
Class AR-L Certificate only if it shall have received the Transferee
Affidavit and Agreement, a certificate of the Holder requesting such
transfer in the form attached hereto as Exhibit O and all of such other
documents as shall have been reasonably required by the Trust
Administrator as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a Holder of a
Class AR or Class AR-L Certificate, then the last preceding Holder
that was other than a Disqualified Organization shall be restored,
to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such
transfer of such Class AR or Class AR-L Certificate. If any non
U.S. Person shall become a Holder of a Class AR or Class AR-L
Certificate, then the last preceding Holder that is a U.S. Person
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of the transfer to such non U.S. Person of such
Class AR or Class AR-L Certificate. If a transfer of a Class AR or
Class AR-L Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the
last preceding Holder that was other than a Disqualified
Organization shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date
of registration of such transfer of such Class AR or Class AR-L
Certificate. The Trust Administrator shall be under no liability to
any Person for any registration of transfer of a Class AR or
Class AR-L Certificate that is in fact not permitted by this
Section 6.02(g) or for making any payments due on such Certificate
to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported transferee of a Class AR or
Class AR-L Certificate shall become a Holder of a Class AR or
Class AR-L Certificate in violation of the restrictions in this
Section 6.02(g) and to the extent that the retroactive restoration
of the rights of the Holder of such Class AR or Class AR-L
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Depositor shall have the right,
without notice to the Holder or any prior Holder of such Class AR or
Class AR-L Certificate, to sell such Class AR or Class AR-L
Certificate to a purchaser selected by the Depositor on such terms
as the Depositor may choose. Such purported transferee shall
promptly endorse and deliver a Class AR or Class AR-L Certificate in
accordance with the instructions of the Depositor. Such purchaser
may be the Depositor itself or any affiliate of the Depositor. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Depositor or its affiliates), expenses
and taxes due, if any, shall be remitted by the Depositor to such
purported transferee. The terms and conditions of any sale under
this clause (iii)(B) shall be determined in the sole discretion of
the Depositor, and the Depositor shall not be liable to any Person
having an ownership interest or a purported ownership interest in a
Class AR or Class AR-L Certificate as a result of its exercise of
such discretion.
(iv) The Master Servicer and each Servicer, on behalf of the Trust
Administrator, shall make available, upon written request from the
Trust Administrator, all information reasonably available to it that is
necessary to compute any tax imposed (A) as a result of the transfer of
an ownership interest in a Class AR or Class AR-L Certificate to any
Person who is not other than a Disqualified Organization, including the
information regarding "excess inclusions" of such Residual Certificate
required to be provided to the Internal Revenue Service and certain
Persons as described in Treasury Regulation Section 1.860D 1(b)(5), and
(B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or
organizations described in Section 1381 of the Code having as among its
record holders at any time any Person who is not other than a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Master Servicer or the related
Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to this
Section (v) may be modified, added to or eliminated by the Depositor,
provided that there shall have been delivered to the Trust
Administrator the following:
(A) written notification from each Rating Agency to the effect that the
modification, addition to or elimination of such provisions will not
cause such Rating Agency to downgrade its then current rating of the
Certificates; and
(B) a certificate of the Depositor stating that the Depositor has received
an Opinion of Counsel, in form and substance satisfactory to the
Depositor, to the effect that such modification, addition to or
elimination of such provisions will not cause the Trust Fund to
cease to qualify as a REMIC and will not create a risk that (i) the
Trust Fund may be subject to an entity level tax caused by the
transfer of a Class AR or Class AR-L Certificate to a Person which
is not other than a Disqualified Organization or (2) a
Certificateholder or another Person will be subject to a REMIC
related tax caused by the transfer of applicable Class AR or
Class AR-L Certificate to a Person which is not other than a
Disqualified Organization.
(vi) The following legend shall appear on each Class AR or Class AR-L
Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY
BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE DEPOSITOR AND THE TRUST ADMINISTRATOR THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE 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, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF
THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A),
(B), OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION
AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT
SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR
OTHER DISPOSITION OF THIS [CLASS AR][CLASS AR-L] 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 THE [CLASS AR][CLASS AR-L] CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
(h) The Trust Administrator shall have no liability to the Trust Fund
arising from a transfer of any such Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 6.02;
provided, however, that the Trust Administrator shall not register the
transfer of any Class AR or Class AR-L Certificate if it has actual knowledge
that the proposed transferee does not meet the qualifications of a permitted
Holder of a Class AR or Class AR-L Certificate as set forth in this
Section 6.02.
SECTION 6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and
(b) there is delivered to each Servicer, the Trustee and the Trust
Administrator such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Trustee and the
Trust Administrator that such Certificate has been acquired by a protected
purchaser, the Trust Administrator shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust Fund.
In connection with the issuance of any new Certificate under this
Section 6.03, the Trust Administrator 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 Trust Administrator) connected therewith. Any replacement Certificate
issued pursuant to this Section 6.03 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 6.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trust Administrator, and any agent of the Master
Servicer or any Servicer, the Trust Administrator may treat the person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all other purposes whatsoever, and none of the Master Servicer or the
Servicers, the Trust Administrator, nor any agent of the Master Servicer or a
Servicer or the Trust Administrator shall be affected by any notice to the
contrary.
SECTION 6.05. Access to List of Certificateholders' Names and Addresses.
(a) If three or more Certificateholders (i) request in writing from the
Trust Administrator a list of the names and addresses of Certificateholders,
(ii) state that such Certificateholders desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and (iii) provide a copy of the communication which such
Certificateholders propose to transmit, then the Trust Administrator shall,
within ten Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to a current list of
the Certificateholders. The expense of providing any such information
requested by a Certificateholder shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trust Administrator
or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Trustee and the Trust Administrator shall not be
held accountable by reason of the disclosure of any such information as to
the list of the Certificateholders hereunder, regardless of the source from
which such information was derived.
(b) The Master Servicer and each Servicer, so long as it is a servicer
hereunder, DLJMC and the Depositor shall have unlimited access to a list of
the names and addresses of the Certificateholders which list shall be
provided by the Trust Administrator promptly upon request.
SECTION 6.06. Maintenance of Office or Agency.
The Trust Administrator will maintain or cause to be maintained
at its expense an office or offices or agency or agencies in Minneapolis,
Minnesota where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Trust Administrator
in respect of the Certificates and this Agreement may be served. The Trust
Administrator initially designates its Corporate Trust Office as its office
for such purpose. The Trust Administrator will give prompt written notice to
the Certificateholders of any change in the location of any such office or
agency.
SECTION 6.07. Book Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until
definitive, fully registered Certificates ("Definitive Certificates") have
been issued to the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and effect
with respect to the Book-Entry Certificates;
(b) the Depositor and the Trust Administrator may deal with the Clearing
Agency for all purposes with respect to the Book-Entry Certificates
(including the making of distributions on such Certificates) as the sole
Holder of such Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict with
any other provisions of this Agreement, the provisions of this Section 6.07
shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry Certificates
shall be exercised only through the Clearing Agency and the Participants and
shall be limited to those established by law and agreements between such
Beneficial Holders and the Clearing Agency and/or the Participants. Pursuant
to the Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 6.09, the initial Clearing Agency will make
book-entry transfers among the Participants and receive and transmit
distributions of principal and interest on the related Book-Entry
Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
the Book-Entry Certificates evidencing a specified percentage of the
aggregate unpaid principal amount of such Certificates, such direction or
consent may be given by the Clearing Agency at the direction of Beneficial
Holders owning such Certificates evidencing the requisite percentage of
principal amount of such Certificates. The Clearing Agency may take
conflicting actions with respect to the Book-Entry Certificates to the extent
that such actions are taken on behalf of the Beneficial Holders.
SECTION 6.08. Notices to Clearing Agency.
Whenever notice or other communication to the Holders of
Book-Entry Certificates is required under this Agreement, unless and until
Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 6.09, the Trust Administrator shall
give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency which shall
give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
SECTION 6.09. Definitive Certificates.
If (a) the Depositor advises the Trust Administrator in writing
that the Clearing Agency is no longer willing or able to properly discharge
its responsibilities under the Depository Agreement with respect to the
Certificates and the Trust Administrator or the Depositor is unable to locate
a qualified successor, (b) the Depositor, with the consent of the applicable
Participants, advises the Trust Administrator in writing that it elects to
terminate the book-entry system with respect to the Book-Entry Certificates
through the Clearing Agency or (c) after the occurrence of an Event of
Default, Holders of Book-Entry Certificates evidencing not less than 66-2/3%
of the aggregate Class Principal Balance of the Book-Entry Certificates
advise the Trust Administrator in writing that the continuation of a
book-entry system with respect to the such Certificates through the Clearing
Agency is no longer in the best interests of the Holders of such Certificates
with respect to the Book-Entry Certificates and the applicable Participants
consent, the Trust Administrator shall notify all Holders of such
Certificates of the occurrence of any such event and the availability of
Definitive Certificates. Upon surrender to the Trust Administrator of such
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trust Administrator shall
authenticate and deliver the Definitive Certificates. Neither the Depositor
nor the Trust Administrator shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the Trust
Administrator, to the extent applicable with respect to such Definitive
Certificates, and the Trust Administrator shall recognize the Holders of
Definitive Certificates as Certificateholders hereunder.
ARTICLE VII
THE DEPOSITOR, THE SELLER, THE MASTER
SERVICER, THE SERVICERS AND THE SPECIAL SERVICER
SECTION 7.01. Liabilities of the Sellers, the Depositor, the Master
Servicer, the Back-Up Servicer, the Servicers
and the Special Servicer.
The Depositor, the Sellers, the Master Servicer, the Back-Up
Servicer, each Servicer and the Special Servicer shall be liable under this
Agreement to any other party to this Agreement, including the liability of
each Servicer to the Master Servicer in accordance herewith only to the
extent of the obligations specifically and respectively imposed upon and
undertaken by them herein.
SECTION 7.02. Merger or Consolidation of the Sellers, the Depositor, the
Back-Up Servicer, the Master Servicer, the
Servicers or the Special Servicer.
Subject to the immediately succeeding paragraph, the Depositor,
the Sellers, the Master Servicer, the Back-Up Servicer, each Servicer and the
Special Servicer will each do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights and
franchises (charter and statutory) and will each 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, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, the Sellers, the Master
Servicer, the Back-Up Servicer, any Servicer or the Special Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, the Sellers, the Master Servicer, the
Back-Up Servicer, any Servicer or the Special Servicer shall be a party, or
any Person succeeding to the business of the Depositor, the Sellers, the
Back-Up Servicer or any Servicer, shall be the successor of the Depositor,
the Sellers, the Back-Up Servicer or such Servicer, as the case may be,
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; provided, however, that the successor or surviving Person to
the Master Servicer, the Back-Up Servicer, any such Servicer or the Special
Servicer shall be qualified to sell mortgage loans to, and to service
mortgage loans on behalf of, FNMA or FHLMC.
Notwithstanding anything else in this Section 7.02 or in
Section 7.04 hereof to the contrary, the Master Servicer or a Servicer may
assign its rights and delegate its duties and obligations under this
Agreement; provided, however, that the Master Servicer or such Servicer gives
the Depositor, the Trustee and the Trust Administrator notice of such
assignment; provided, further, (a) that such purchaser or transferee
accepting such assignment and delegation shall be an institution that is a
FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, and which is willing to service the Mortgage
Loans and (b) such purchaser or transferee executes and delivers to the
Depositor, the Trustee and the Trust Administrator an agreement accepting
such delegation and assignment, which contains an assumption by such Person
of the rights, powers, duties, responsibilities, obligations and liabilities
of the Master Servicer, the Back-Up Servicer or such Servicer, with like
effect as if originally named as a party to this Agreement; provided,
further, that each of the Rating Agencies acknowledge that its rating of the
Certificates in effect immediately prior to such assignment will not be
qualified or reduced as a result of such assignment and delegation. In the
case of any such assignment and delegation, the Master Servicer, the Back-Up
Servicer or such Servicer shall be released from its obligations under this
Agreement (except as provided above), except that the Master Servicer,
Back-Up Servicer or the related Servicer shall remain liable for all
liabilities and obligations incurred by it as the Master Servicer, Back-Up
Servicer or Servicer hereunder prior to the satisfaction of the conditions to
such assignment and delegation set forth in the preceding sentence.
SECTION 7.03. Limitation on Liability of the Sellers, the Depositor, the
Master Servicer, the Back-Up Servicer, the
Servicers, the Special Servicer and Others.
None of the Depositor, the Master Servicer, the Back-Up Servicer,
any Servicer, the Sellers, the Special Servicer, nor any of the directors,
officers, employees or agents of the Depositor, the Master Servicer, the
Back-Up Servicer, any Servicer, the Sellers or the Special Servicer shall be
under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Master Servicer, the Back-Up Servicer,
any Servicer, the Sellers or the Special Servicer against any breach of
representations or warranties made by it herein or protect the Depositor, the
Master Servicer, the Back-Up Servicer, any Servicer, the Sellers or the
Special Servicer or any such director, officer, employee or agent from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, the
Master Servicer, the Back-Up Servicer, any Servicer, the Sellers and the
Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer, the Back-Up Servicer, any Servicer, the
Sellers or the Special 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. The Depositor, the Master Servicer, the Back-Up
Servicer, any Servicer, the Sellers and the Special Servicer and any
director, officer, employee or agent of the Depositor, the Master Servicer,
the Back-Up Servicer, any Servicer, the Sellers or the Special Servicer shall
be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, the Master
Servicer, the Back-Up Servicer, any Servicer, the Sellers or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to their respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that the Depositor, the Master Servicer, the Back-Up Servicer, any
Servicer, the Sellers or the Special Servicer may in its discretion undertake
any such action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of
the Trustee, the Trust Administrator and the Certificateholders hereunder;
provided, however, that in the event the related Servicer agrees, at the
request of the related Seller, to act on behalf of the related Seller in any
dispute or litigation that is not incidental to such Servicer's duties
hereunder and that relates to the origination of a Mortgage Loan, the related
Seller shall pay all expenses associated with the management and defense of
such claim. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Master Servicer, the Back-Up Servicer, any Servicer or the
Special Servicer be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits),
even if the Master Servicer, the Back-Up Servicer, the related Servicer or
the Special Servicer has been advised of the likelihood of such loss or
damage and regardless of the form of action.
SECTION 7.04. Master Servicer and Servicer Not to Resign; Transfer of
Servicing.
(a) Neither the Master Servicer nor any Servicer shall resign from the
obligations and duties hereby imposed on it except (i) upon appointment of a
successor master servicer or successor servicer and receipt by the Trustee
and the Trust Administrator of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates related to the applicable Mortgage Loans, or
(ii) upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination under clause (ii) permitting
the resignation of the Master Servicer or a Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee and the Trust
Administrator. No such resignation shall become effective until the
successor master servicer or successor servicer shall have assumed the Master
Servicer or such Servicer's, as applicable, responsibilities, duties,
liabilities and obligations hereunder in accordance with Section 8.02 hereof.
(b) Notwithstanding the foregoing, at DLJMC's request, so long as it is the
owner of the related servicing rights, the Master Servicer or SPS shall
resign, upon the selection and appointment of a successor master servicer or
servicer, as applicable; provided that DLJMC delivers to the Trustee and the
Trust Administrator the letter required in Section 7.04(a)(i) above.
Notwithstanding the foregoing, in the event that the Master Servicer is
appointed as the successor servicer to SPS, the requirements of
Section 7.04(a)(i) shall be waived. In connection with the foregoing, unless
otherwise directed by DLJMC in writing on or prior to the first day of the
second month following the Closing Date, DLJMC hereby directs SPS to resign
as Servicer hereunder and appoints the Master Servicer to service the SPS
Serviced Mortgage Loans, effective as of the first day of the third month
following the Closing Date. In connection with its resignation, SPS hereby
agrees to deliver to the Master Servicer on the date of its resignation a
schedule setting forth all of the SPS Mortgage Loans as of such date. The
Master Servicer agrees that, as of the first day of the third month following
the Closing Date, it will service the SPS Serviced Mortgage Loans, and that
such loans shall constitute Xxxxx Fargo Serviced Mortgage Loans, in
accordance with the terms of this Agreement. If the Master Servicer resigns
pursuant to this Section 7.04(b), DLJMC shall pay the Master Servicer an
amount equal to the product of (a) the Stated Principal Balance of all of the
Mortgage Loans then outstanding and (b) 0.02%.
(c) Notwithstanding the foregoing, if the Trust Administrator shall for any
reason no longer be Trust Administrator hereunder, at DLJMC's request, the
Master Servicer shall resign, upon the selection and appointment of a
successor master servicer; provided that DLJMC delivers to the Trustee and
the Trust Administrator the letter required in Section 7.04(a)(i) above.
(d) Notwithstanding the foregoing, at DLJMC's request, the Special Servicer
shall resign, upon the selection and appointment of a successor special
servicer by DLJMC; provided that DLJMC delivers to the Trustee and the Trust
Administrator the letter required in Section 7.04(a)(i) above.
SECTION 7.05. Master Servicer, Sellers and Servicers May Own Certificates.
Each of the Master Servicer, the Sellers, the Special Servicer
and each Servicer in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Master Servicer, the Sellers, the Special Servicer or a Servicer.
SECTION 7.06. Termination of Duties of the Back-Up Servicer.
The rights and obligations of the Back-Up Servicer under this
Agreement shall terminate upon the earlier of (i) the appointment of the
Back-Up Servicer (or its affiliate) as successor Servicer to SPS and (ii) the
termination of Xxxxx Fargo as Back-Up Servicer by DLJMC. DLJMC may remove
Xxxxx Fargo as Back-Up Servicer at any time.
ARTICLE VIII
DEFAULT
SECTION 8.01. Events of Default.
"Event of Default," wherever used herein, and as to the Master
Servicer or any Servicer, means any one of the following events (whatever
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):
(a) any failure by the Master Servicer or a Servicer to remit to the
Certificateholders or to the Trust Administrator any payment other than an
Advance required to be made by the Master Servicer or such Servicer under the
terms of this Agreement, which failure shall continue unremedied for a period
of (i) with respect to the Master Servicer or a Servicer other than Xxxxx
Fargo, one Business Day and (ii) with respect to Xxxxx Fargo, two Business
Days, after the date upon which written notice of such failure shall have
been given to the Master Servicer or such Servicer by the Trust Administrator
or the Depositor or to the Master Servicer or the related Servicer and the
Trust Administrator by the Holders of Certificates having not less than 25%
of the Voting Rights evidenced by the Certificates; or
(b) any failure by the Master Servicer or a Servicer to observe or perform
in any material respect any other of the covenants or agreements on the part
of the Master Servicer or a Servicer contained in this Agreement (except as
set forth in (c) and (g) below) which failure (i) materially affects the
rights of the Certificateholders and (ii) shall continue unremedied for a
period of 60 days after the date on which written notice of such failure
shall have been given to the Master Servicer or such Servicer by the Trust
Administrator or the Depositor, or to the Master Servicer or a Servicer and
the Trust Administrator by the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof made
solely in its capacity as the Master Servicer or a Servicer shall prove to be
materially incorrect as of the time made in any respect that materially and
adversely affects interests of the Certificateholders, and the circumstances
or condition in respect of which such representation or warranty was
incorrect shall not have been eliminated or cured within 90 days after the
date on which written notice thereof shall have been given to the Master
Servicer or the related Servicer and the Sellers by the Trust Administrator
for the benefit of the Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or liquidation
of its affairs, shall have been entered against the Master Servicer or a
Servicer and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
(e) the Master Servicer or a Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or such Servicer or all or substantially all
of the property of the Master Servicer or such Servicer; or
(f) the Master Servicer or a Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable insolvency
or reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(g) any failure of the Master Servicer or a Servicer to make any Advance in
the manner and at the time required to be made from its own funds pursuant to
Section 5.01 of this Agreement and after receipt of written notice from the
Trust Administrator of such failure, which failure continues unremedied
(i) with respect to the Master Servicer or a Servicer, other than Xxxxx Fargo
(in its capacity as a Servicer), after 2 p.m., New York City time, on the
Business Day immediately following the Master Servicer's or such Servicer's
receipt of such notice and (ii) with respect to Xxxxx Fargo (in its capacity
as a Servicer), on the second Business Day immediately following Xxxxx
Fargo's receipt of such notice; or
(h) notwithstanding anything to the contrary in Section 8.01(b) and with
respect to SPS, (i) (A) any failure by SPS to comply with Section 13.01(a),
which failure shall continue unremedied for a period of 30 days after the
date on which written notice of such failure shall have been given to SPS by
the Master Servicer and (B) the Master Servicer shall have delivered written
notice to the Trust Administrator and Depositor that such failure has not
been remedied after such 30 day period, or (ii) the Master Servicer has
concluded in a written report to the Trust Administrator, based solely on the
reports required to be delivered to the Master Servicer by SPS pursuant to
Section 13.01(a), either (1) that SPS is not servicing the SPS Mortgage Loans
in accordance with Accepted Servicing Practices or (2) that SPS has failed
the Loss and Delinquency Test; or
(i) with respect to SPS and after the Closing Date, (1) any reduction or
withdrawal of the ratings of SPS as a servicer of subprime mortgage loans by
one or more of the Rating Agencies that maintains a servicer rating system
and a Rating on the Certificates to "below average" or below or (2) any
reduction or withdrawal of the Ratings of any Class of Certificates
attributable solely to SPS or the servicing of the SPS Mortgage Loans by SPS
or (3) any placement by a Rating Agency of any Class of Certificates on
credit watch with negative implications attributable solely to SPS or the
servicing of the SPS Mortgage Loans by SPS; or
(j) (a) either (i) the servicer rankings or ratings for a Servicer, other
than SPS, are downgraded two or more levels below the level in effect on the
Closing Date by one or more of the Rating Agencies rating the Certificates or
(ii) the servicer rankings or ratings for a Servicer, other than SPS, are
downgraded to "below average" status by one or more of the Rating Agencies
rating the Certificates or (b) one or more classes of the Certificates are
downgraded or placed on negative watch due in whole or in part to the
performance or servicing of a Servicer, other than SPS; or
(k) (a) either the master servicer rankings or ratings for the Master
Servicer are downgraded two or more levels below the level in effect on the
Closing date by one or more of the Rating Agencies rating the Certificates or
(ii) the Master Servicer rankings or ratings for the Master Servicer, are
downgraded to "below average" status by one or more of the Rating Agencies
rating the Certificates or (b) one or more classes of the Certificates are
downgraded or placed on negative watch due in whole or in part to the
performance or master servicing of the Master Servicer; or
(l) any failure by an applicable Servicer to (a) remit payment of an
Assigned Prepayment Premium to the Collection Account or (b) remit funds in
the amount equal to an Assigned Prepayment Premium which the applicable
Servicer has failed to collect, in each case as required pursuant to this
Agreement, which failure continues unremedied for a period of one Business
Day after the date upon which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Trust
Administrator, the Master Servicer, the Trustee or the Depositor.
If an Event of Default due to the actions or inaction of the
Master Servicer or a Servicer described in clauses (a) through (f) of this
Section shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, (i) the Trust Administrator
shall at the direction of the Trustee or the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to the Master Servicer or such Servicer
(with a copy to the Rating Agencies), terminate all of the rights and
obligations of the Master Servicer or such Servicer under this Agreement
(other than rights to reimbursement for Advances and Servicing Advances
previously made, as provided in Section 3.08) and (ii) the Master Servicer
may, if such Event of Default is due to the actions or inactions of a
Servicer, by notice in writing to such Servicer (with a copy to the Rating
Agencies), terminate all of the rights and obligations of such Servicer under
this Agreement (other than rights to reimbursement for Advances and Servicing
Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur,
(i) if the Master Servicer has failed to make any Advance, the Trustee, and
(ii) if any Servicer has failed to make any Advance, the Master Servicer,
shall prior to the next Distribution Date, immediately make such Advance and
terminate the rights and obligations of the Master Servicer or applicable
Servicer, as applicable, hereunder and succeed to the rights and obligations
of the Master Servicer or such Servicer, as applicable, hereunder pursuant to
Section 8.02, including the obligation to make Advances on such succeeding
Distribution Date pursuant to the terms hereof. No Event of Default with
respect to the Master Servicer or a Servicer shall affect the rights or
duties of any other Servicer or constitute an Event of Default as to any
other Servicer.
If an Event of Default set forth in clause (h)(ii) above shall
occur, the Trust Administrator shall furnish the Certificateholders the
Master Servicer's written report as to SPS's servicing performance in the
next monthly statement to Certificateholders distributed pursuant to
Section 4.05. If an Event of Default set forth in clause (h) or (i) shall
occur, the Trust Administrator or the Depositor (after consulting with the
Trust Administrator), may, or at the direction of Certificateholders
evidencing not less than 51% or more of the Voting Rights evidenced by the
Certificates, the Trust Administrator shall, by written notice to the
Servicer (with a copy to each Rating Agency), terminate all of the rights and
obligations of SPS as Servicer under this Agreement. With respect to an
Event of Default set forth in clauses (h) or (i) above and upon any
termination of SPS as Servicer pursuant to this paragraph, DLJMC, in
accordance with Section 7.04(b), shall appoint a successor servicer,
irrespective of DLJMC's ownership of the related servicing rights. Any such
servicing transfer as a result of an Event of Default set forth in clause
(h) or (i) shall be accomplished in 60 days from the date the Trust
Administrator delivers the Master Servicer's report to Certificateholders or
from the date SPS received such notice of termination.
If an Event of Default described in clause (h) or (i)(3) occurs,
DLJMC shall reimburse SPS for all unreimbursed Advances and Servicing
Advances made by SPS on the date the servicing is transferred to the
successor servicer hereunder and DLJMC shall be entitled to reimbursement by
the successor servicer of any such amounts as and to the extent such amounts
are received by the successor servicer under the terms of this Agreement.
If an Event of Default described in clause (i), (j) or (l)
occurs, the Master Servicer or the Back-Up Servicer solely with respect to
clause (i), shall at the direction of DLJMC, by notice in writing to such
Servicer, terminate all of the rights and obligations of such Servicer under
this Agreement (other than rights to reimbursement for Advances and Servicing
Advances previously made, as provided in Section 3.08) and shall appoint as
successor Servicer the entity selected by DLJMC in accordance with
Section 8.02; provided that DLJMC shall first furnish to the Master Servicer
or the Back-Up Servicer, as applicable, a letter from each Rating Agency that
the appointment of such successor will not result in a downgrading of the
rating of any of the Certificates.
If an Event of Default described in clause (k) occurs, the
Trustee shall at the direction of DLJMC, by notice in writing to the Master
Servicer, terminate all of the rights and obligations of the Master Servicer
under this Agreement (other than rights to reimbursement for Advances
previously made, as provided in Section 3.08) and shall appoint as successor
Master Servicer the entity selected by DLJMC in accordance with Section 8.02;
provided that DLJMC shall first furnish to the Trustee a letter from each
Rating Agency that the appointment of such successor will not result in a
downgrading of the rating of any of the Certificates.
No Event of Default with respect to the Servicer shall affect the
rights or duties of the Master Servicer or constitute an Event of Default as
to the Master Servicer.
SECTION 8.02. Master Servicer or Trust Administrator to Act; Appointment
of Successor.
On and after the time the Master Servicer or a Servicer receives
a notice of termination pursuant to Section 8.01 hereof or resigns pursuant
to Section 7.04 hereof, subject to the provisions of Section 3.04 hereof, the
Trustee (in the case of the Master Servicer), the Trust Administrator or the
Back-Up Servicer (in the case of SPS), shall be the successor in all respects
to the Master Servicer or such Servicer, as applicable, in its capacity as
servicer under this Agreement and with respect to the transactions set forth
or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer or such
Servicer, as applicable, by the terms and provisions hereof; provided, that
the Trustee, the Trust Administrator, the Master Servicer or the Back-Up
Servicer, as applicable, shall not be deemed to have made any representation
or warranty as to any Mortgage Loan made by the Master Servicer or any
Servicer, as applicable, and shall not effect any repurchases or
substitutions of any Mortgage Loan; provided, further, that it is understood
and acknowledged by the parties hereto that there will be a full period of
transition (not to exceed ninety (90) days) before the actual servicing
functions of any Servicer can be fully transferred to Xxxxx Fargo as
successor Servicer; provided, further, that during such period of transition
Xxxxx Fargo, as successor Servicer, shall continue to make all required
Compensating Interest Payments and Advances. As compensation therefor, the
Trustee, the Trust Administrator, the Back-Up Servicer or the Master
Servicer, as applicable, shall be entitled to all funds relating to the
Mortgage Loans that the Master Servicer or related Servicer (the "Replaced
Servicer") would have been entitled to charge to the related Collection
Account if the Replaced Servicer had continued to act hereunder (except that
the Replaced Servicer shall retain the right to be reimbursed for advances
(including, without limitation, Advances and Servicing Advances) theretofore
made by the Replaced Servicer with respect to which it would be entitled to
be reimbursed as provided in Section 3.08 if it had not been so terminated or
resigned). Notwithstanding the foregoing, if the Trustee, the Trust
Administrator, the Back-Up Servicer or the Master Servicer, as applicable,
has become the successor to a Replaced Servicer, in accordance with this
Section 8.02, the Trustee, the Trust Administrator, the Back-Up Servicer or
the Master Servicer, as applicable, may, if it shall be unwilling to so act,
or shall, if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution, the appointment of which does not adversely affect the then
current rating of the Certificates, as the successor to the Master Servicer,
the Back-Up Servicer or a Servicer, as applicable, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer, the Back-Up Servicer or such Servicer, as applicable,
provided that such successor to the Master Servicer, the Back-Up Servicer or
the Servicer, as applicable, shall not be deemed to have made any
representation or warranty as to any Mortgage Loan made by the Master
Servicer or the related Servicer, as applicable. Pending appointment of a
successor to the Master Servicer, the Back-Up Servicer or a Servicer, as
applicable, hereunder, the Trustee, the Trust Administrator or the Master
Servicer, as applicable, unless such party is prohibited by law from so
acting, shall act in such capacity as provided herein. In connection with
such appointment and assumption, the Trustee, the Trust Administrator, the
Master Servicer or the Back-Up Servicer, as applicable, may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted the Replaced
Servicer, hereunder. The Trustee, the Trust Administrator or the Master
Servicer, as applicable, and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. None of the Trustee, the Trust Administrator, the Master
Servicer nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by the failure of a
Replaced Servicer to deliver, or any delay in delivering, cash, documents or
records to it.
A Replaced Servicer that has been terminated shall, at the
request of the Trustee, the Trust Administrator, the Master Servicer or the
Back-Up Servicer, as applicable, but at the expense of such Replaced Servicer
deliver to the assuming party all documents and records relating to the
applicable Mortgage Loans and an accounting of amounts collected and held by
it and otherwise use commercially reasonable efforts to effect the orderly
and efficient transfer and assignment of such servicing, but only to the
extent of the Mortgage Loans serviced thereunder, to the assuming party.
Notwithstanding anything to the contrary contained herein, the termination of
a Servicer under this Agreement shall not extend to any Subservicer meeting
the requirements of Section 3.02(a) and otherwise servicing the related
Mortgage Loans in accordance with the servicing provisions of this Agreement.
The Master Servicer, the Back-Up Servicer and each Servicer shall
cooperate with the Trustee and the Trust Administrator and any successor
servicer in effecting the termination of a Replaced Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by such Servicer to the applicable Collection
Account or thereafter received with respect to the Mortgage Loans.
None of the Trustee, the Trust Administrator nor any other
successor servicer shall be deemed to be in default hereunder by reason of
any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (a) the failure of the Master Servicer, the
Back-Up Servicer or any Servicer to (i) deliver, or any delay in delivering,
cash, documents or records to it, or (ii) cooperate as required by this
Agreement, or (b) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer, the Back-Up Servicer or the related
Servicer.
Any successor to a Servicer as servicer shall during the term of
its service as servicer maintain in force the policy or policies that such
Servicer is required to maintain pursuant to Section 3.09(b) hereof.
If a Servicer that has been terminated fails to pay all costs
related to the transition of servicing to the successor Servicer, the
successor Servicer shall be entitled to reimbursement of those amounts from
the Trust.
In connection with the termination or resignation of a Servicer
hereunder, either (i) the successor Servicer, including the Trust
Administrator or Master Servicer if either of such parties is acting as
successor Servicer or Back-Up Servicer, shall represent and warrant that it
or an affiliate is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the related Mortgage Loans that are
registered with MERS, or (ii) the Replaced Servicer, at its sole expense,
shall cooperate with the successor Servicer either (x) in causing MERS to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS® System to the successor Servicer or (y) in causing MERS to
designate on the MERS® System the successor Servicer as the servicer of such
Mortgage Loan (at the cost and expense of the successor Servicer to the
extent such costs relate to the qualification of such successor Servicer as a
member of MERS, otherwise at the cost and expense of the Replaced Servicer).
The Replaced Servicer shall file or cause to be filed any such assignment in
the appropriate recording office. The successor Servicer shall cause such
assignment to be delivered to the Trustee promptly upon receipt of the
original with evidence of recording thereon or a copy certified by the public
recording office in which such assignment was recorded.
SECTION 8.03. Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the Master
Servicer or any Servicer, the Trust Administrator shall give prompt written
notice thereof to the Sellers and the Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies,
or, as applicable, the Master Servicer shall give prompt written notice
thereof to the Trust Administrator.
(b) Within two Business Days after the occurrence of any Event of Default,
the Trust Administrator shall transmit by mail to the Sellers and all
Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trust Administrator, unless such Event of
Default shall have been cured or waived.
SECTION 8.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive
any default or Event of Default; provided, however, that (a) a default or
Event of Default under clause (g) of Section 8.01 may be waived, only by all
of the Holders of Certificates affected by such default or Event of Default
and (b) no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 12.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of
Default shall cease to exist and shall be deemed to have been cured and
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only
such duties as are specifically set forth in this Agreement. In case an
Event of Default of which a Responsible Officer of the Trustee shall have
actual knowledge has occurred and remains uncured, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs. Any permissive right of the Trustee set forth in this Agreement
shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee
shall have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not
to conform in any material respect to the requirements of this Agreement, the
Trustee shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected instrument.
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 misconduct, its negligent failure to perform its
obligations in compliance with this Agreement, or any liability which would
be imposed by reason of its willful misfeasance or bad faith; provided,
however, that:
(a) prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee shall have actual knowledge, and after the curing or
of all such Events of Default that 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 personally liable
except for the performance of such 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 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 which it reasonably
believed in good faith to be genuine and to have been duly executed by the
proper authorities respecting any matters arising hereunder;
(b) the Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless the Trustee was negligent in ascertaining or investigating
the pertinent facts;
(c) the Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
this Agreement at the direction of the Holders of Certificates evidencing
greater than 50% of the Voting Rights allocated to each Class of Certificates
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement;
(d) no provision of this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; and
(e) the Trustee shall have no responsibility for any act or omission of the
Trust Administrator or a Custodian, it being understood and agreed that the
Trustee, Trust Administrator and any Custodian are independent contractors
and not agents, partners or joint venturers.
The Trustee shall not be deemed to have knowledge of any Event of
Default or event which, with notice or lapse of time, or both, would become
an Event of Default, unless a Responsible Officer of the Trustee shall have
received written notice thereof from a Servicer, the Depositor or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as
a consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer or the related Servicer upon receipt of any such complaint, claim,
demand, notice or other document (i) which is delivered to the Corporate
Trust Office of the Trustee, (ii) of which a Responsible Officer has actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee to make a determination that the real property to which such document
relates is a Mortgaged Property.
SECTION 9.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors, Servicing Officers 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;
(ii) the Trustee may consult with counsel, financial advisors or accountants
and any advice of such Persons or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by 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 shall have 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 or
use under the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable 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;
(v) prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default that may have occurred, 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 so to do by
Holders of Certificates evidencing greater than 50% of the Voting
Rights allocated to each Class of Certificates; provided, however, that
if 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, not 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 investigation shall be paid (A) by the
Master Servicer or by the applicable Servicer in the event that such
investigation relates to an Event of Default by the Master Servicer or
by such Servicer, respectively, if an Event of Default by the Master
Servicer or by such Servicer shall have occurred and is continuing, and
(B) otherwise by the Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with
due care;
(vii) the Trustee shall not be required to expend its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is
not assured to it;
(viii) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement; and
(ix) 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 answerable for other than its negligence or willful misconduct
in the performance of such act.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Agreement,
the Certificates or of any Mortgage Loan or related document or of MERS or
the MERS® System. The Trustee shall not be accountable for the use or
application by the Depositor, the Sellers, the Master Servicer or any
Servicers of any funds paid to the Depositor or the Master Servicer or any
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from
the Certificate Account by the Depositor, the Sellers, the Master Servicer or
the Servicers. The Trustee shall not be responsible for the legality or
validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. The Trustee shall have no 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.
SECTION 9.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates and may transact business with the other
parties hereto and with their Affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 9.05. Trustee's Fees and Expenses.
The Trustee shall be compensated by the Trust Administrator as
separately agreed. The Trustee and any director, officer, employee or agent
of the Trustee shall be indemnified by DLJMC and held harmless (up to a
maximum of $150,000) against any loss, liability or expense (including
reasonable attorney's fees and expenses) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Certificates,
or (c) the performance of any of the Trustee's duties hereunder, other than
any loss, liability or expense incurred by reason of willful misconduct, bad
faith or negligence in the performance of any of the Trustee's duties
hereunder or incurred by reason of any action of the Trustee taken at the
direction of the Certificateholders and (ii) resulting from any error in any
tax or information return prepared by the Master Servicer or a Servicer.
Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee hereunder. Without limiting the
foregoing, the Depositor covenants and agrees, except as otherwise agreed
upon in writing by the Depositor and the Trustee, and except for any such
expense, disbursement or advance as may arise from the Trustee's negligence,
bad faith or willful misconduct, to pay or reimburse the Trustee, for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance
of the Certificates, (B) the reasonable compensation, expenses and
disbursements of any accountant, engineer or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage such
persons to perform acts or services hereunder and (C) printing and engraving
expenses in connection with preparing any Definitive Certificates. Except as
otherwise provided herein, the Trustee shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trustee in the
ordinary course of its duties as Trustee hereunder or for any other
expenses. 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.
SECTION 9.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long term debt obligations at the time of
such appointment in at least the third highest rating category by both
Xxxxx'x and S&P (provided that if such rating is in the third highest rating
category of S&P, the Trustee shall also have a short-term rating from S&P of
A-1) or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then current ratings of the Class A Certificates (other than the Class 5-X
and Residual Certificates), having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or association 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 or
association shall be deemed to be its 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 9.07 hereof.
SECTION 9.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the
trusts hereby created by (a) giving written notice of resignation to the
Depositor, DLJMC, the Trust Administrator, the Master Servicer, the Special
Servicer and the Servicers and by mailing notice of resignation by first
class mail, postage prepaid, to the Certificateholders at their addresses
appearing on the Certificate Register, and to the Rating Agencies, not less
than 60 days before the date specified in such notice when, subject to
Section 9.08, such resignation is to take effect, and (b) acceptance by a
successor trustee in accordance with Section 9.08 meeting the qualifications
set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 hereof and shall fail to
resign after written request thereto 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 or if the Trustee breaches any of its obligations or
representations hereunder, then the Depositor may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee and one copy to the
successor trustee. The Trustee may also be removed at any time by the
Holders of Certificates evidencing not less than 50% of the Voting Rights
evidenced by the Certificates. Notice of any removal of the Trustee and
acceptance of appointment by the successor trustee shall be given to the
Rating Agencies by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for
the appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 9.08 hereof.
SECTION 9.08. Successor Trustee.
Any successor trustee appointed as provided in Section 9.07
hereof shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall 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 the like effect as if
originally named as trustee herein. The Depositor, upon receipt of all
amounts due it hereunder, 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.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided
in this Section 9.08, the Depositor shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Depositor fails to mail such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 9.09. Merger or Consolidation of Trustee.
Any Person into which the Trustee 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 Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof 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 9.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Fund or property securing any Mortgage Note
may at the time be located, the Master Servicer 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 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 Fund, and to vest in such Person or
Persons, in such capacity and for the benefit of the applicable
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 9.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. If the Master Servicer shall not have
joined in such appointment within fifteen days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and
be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon
the Trustee, except for any obligation of the Trustee under this Agreement to
advance funds on behalf of the Master Servicer or a Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed by
the Trustee (whether as Trustee hereunder or as successor to the Master
Servicer or a Servicer), 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 Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(b) no trustee hereunder shall be held personally liable by reason of any
act or omission of any other trustee hereunder; and
(c) the Master Servicer and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
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 and a copy thereof given to the Master Servicer or the
Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. The Trust Administrator shall
not be responsible for all action or inaction of any separate trustee or
co-trustee. 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.
SECTION 9.11. Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01. Duties of Trust Administrator.
The Trust Administrator, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge and after the curing or waiver of all Events of Default that
may have occurred, undertakes with respect to the Trust Fund to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case an Event of Default of which a Responsible Officer of the Trust
Administrator shall have actual knowledge has occurred and remains uncured,
the Trust Administrator shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs. Any permissive right of the
Trust Administrator set forth in this Agreement shall not be construed as a
duty.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement. The Trust Administrator shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the
Trust Administrator. If any such instrument is found not to conform in any
material respect to the requirements of this Agreement, the Trust
Administrator shall notify the Certificateholders of such instrument in the
event that the Trust Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(a) prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trust Administrator shall have actual knowledge, and after the
curing or of all such Events of Default that may have occurred, the duties
and obligations of the Trust Administrator shall be determined solely by the
express provisions of this Agreement, the Trust Administrator shall not be
personally liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trust Administrator
and the Trust Administrator 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 Trust Administrator and conforming
to the requirements of this Agreement which it reasonably believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trust Administrator shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trust Administrator, unless the Trust Administrator was negligent in
ascertaining or investigating the pertinent facts;
(c) the Trust Administrator shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with this Agreement or at the direction of the Holders of
Certificates evidencing greater than 50% of the Voting Rights allocated to
each Class of Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Trust
Administrator, or exercising any trust or power conferred upon the Trust
Administrator, under this Agreement; and
(d) no provision of this Agreement shall require the Trust Administrator to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
The Trust Administrator shall have no duty (A) to see to any
recording, filing or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording, filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Certificate Account.
Except with respect to an Event of Default described in clause
(a) of Section 8.01, the Trust Administrator shall not be deemed to have
knowledge of any Event of Default or event which, with notice or lapse of
time, or both, would become an Event of Default, unless a Responsible Officer
of the Trust Administrator shall have received written notice thereof from
the Master Servicer or a Servicer, the Depositor, or a Certificateholder, or
a Responsible Officer of the Trust Administrator has actual notice thereof,
and in the absence of such notice no provision hereof requiring the taking of
any action or the assumption of any duties or responsibility by the Trust
Administrator following the occurrence of any Event of Default or event
which, with notice or lapse of time or both, would become an Event of
Default, shall be effective as to the Trust Administrator.
The Trust Administrator shall have no duty hereunder with respect
to any complaint, claim, demand, notice or other document it may receive or
which may be alleged to have been delivered to or served upon it by the
parties as a consequence of the assignment of any Mortgage Loan hereunder;
provided, however, that the Trust Administrator shall use its best efforts to
remit to the Master Servicer or the Servicer upon receipt of any such
complaint, claim, demand, notice or other document (i) which is delivered to
the Corporate Trust Office of the Trust Administrator, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trust Administrator to make a
determination that the real property to which such document relates is a
Mortgaged Property.
SECTION 10.02. Certain Matters Affecting the Trust Administrator.
(a) Except as otherwise provided in Section 10.01:
(i) the Trust Administrator may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers 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;
(ii) the Trust Administrator may consult with counsel, financial advisors or
accountants and any advice of such Persons or opinion of counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion of counsel;
(iii) the Trust Administrator shall be under no obligation to exercise any of
the trusts or powers vested in it by 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 Trust Administrator reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however,
relieve the Trust Administrator of the obligation, upon the occurrence
of an Event of Default of which a Responsible Officer of the Trust
Administrator shall have 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 or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trust Administrator shall not be personally liable 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;
(v) prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default that may have occurred, the
Trust Administrator 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 so to do
by Holders of Certificates evidencing greater than 50% of the Voting
Rights allocated to each Class of Certificates; provided, however, that
if the payment within a reasonable time to the Trust Administrator of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trust
Administrator, not reasonably assured to the Trust Administrator by the
security afforded to it by the terms of this Agreement, the Trust
Administrator may require reasonable indemnity against such expense or
liability as a condition to taking any such action; the reasonable
expense of every such investigation shall be paid (A) by the Master
Servicer or by the applicable Servicer in the event that such
investigation relates to an Event of Default by the Master Servicer or
by such Servicer, respectively, if an Event of Default by the Master
Servicer or such Servicer shall have occurred and is continuing, and
(B) otherwise by the Certificateholders requesting the investigation;
(vi) the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trust Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care;
(vii) the Trust Administrator shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
liability is not assured to it;
(viii) the Trust Administrator shall not be liable for any loss on any
investment of funds pursuant to this Agreement except as provided in
Section 3.05(e);
(ix) the right of the Trust Administrator to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trust Administrator shall not be answerable for other than its
negligence or willful misconduct in the performance of such act; and
(x) The Trust Administrator shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby or
the powers granted hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trust Administrator, may be enforced by it
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trust Administrator shall be brought in its
name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
SECTION 10.03. Trust Administrator Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trust Administrator assumes no responsibility for their correctness. The
Trust Administrator makes no representations as to the validity or
sufficiency of this Agreement, the Certificates or of any Mortgage Loan or
related document. The Trust Administrator shall not be accountable for the
use or application by the Depositor, the Sellers, the Master Servicer or the
Servicers of any funds paid to the Depositor or the Master Servicer or any
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from
the Certificate Account by the Depositor, the Sellers, the Master Servicer or
the Servicers. The Trust Administrator shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection
or sufficiency of the security for the Certificates issued or intended to be
issued hereunder. The Trust Administrator shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection for any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 10.04. Trust Administrator May Own Certificates.
The Trust Administrator in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights as it
would have if it were not the Trust Administrator.
SECTION 10.05. Trust Administrator's Fees and Expenses.
As compensation for its services hereunder, the Trust
Administrator shall be entitled to the investment income or other benefit
derived from balances in the Certificate Account pursuant to
Section 3.05(e) (the "Trust Administrator Fee"). The Trust Administrator and
any director, officer, employee or agent of the Trust Administrator shall be
indemnified by DLJMC (or if DLJMC shall fail to do so, by the Trust) and held
harmless against any loss, liability or expense (including reasonable
attorney's fees and expenses) (i) incurred in connection with any claim or
legal action relating to (a) this Agreement, (b) the Certificates, (c) the
Custodial Agreement, or (d) the performance of any of the Trust
Administrator's duties hereunder or under the Custodial Agreement, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Trust Administrator's
duties hereunder or incurred by reason of any action of the Trust
Administrator taken at the direction of the Certificateholders and
(ii) resulting from any error in any tax or information return prepared by
the Master Servicer or a Servicer; provided, however, that the sum of
(x) such indemnity amounts payable by DLJMC or the Trust to the Trust
Administrator pursuant to this Section 10.05 and (y) the indemnity amounts
payable by DLJMC or the Trust to the Master Servicer pursuant to
Section 3.14(c), shall not exceed $200,000 per year; provided, further, that
any amounts not payable by DLJMC or the Trust to the Trust Administrator due
to the preceding proviso shall be payable by DLJMC (or if DLJMC fails to do
so, by the Trust) in any succeeding year, subject to the aggregate $200,000
per annum limitation imposed by the preceding proviso. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of
the Trust Administrator hereunder. Without limiting the foregoing, DLJMC (or
if DLJMC fails to do so, the Trust) shall, except as otherwise agreed upon in
writing by DLJMC and the Trust Administrator, and except for any such
expense, disbursement or advance as may arise from the Trust Administrator's
negligence, bad faith or willful misconduct, pay or reimburse the Trust
Administrator (up to a maximum of $150,000), for all reasonable expenses,
disbursements and advances incurred or made by the Trust Administrator in
accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant,
engineer or appraiser that is not regularly employed by the Trust
Administrator, to the extent that the Trust Administrator must engage such
persons to perform acts or services hereunder and (C) printing and engraving
expenses in connection with preparing any Definitive Certificates. In
addition, DLJMC (or if DLJMC fails to do so, the Trust) shall pay or
reimburse the Trust Administrator for recertification fees required to be
paid by the Trust Administrator pursuant to the Custodial Agreement. Except
as otherwise provided herein, the Trust Administrator shall not be entitled
to payment or reimbursement for any routine ongoing expenses incurred by the
Trust Administrator in the ordinary course of its duties as Trust
Administrator, Registrar, Tax Matters Person or Paying Agent hereunder.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Trust Administrator be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trust Administrator has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 10.06. Eligibility Requirements for Trust Administrator.
The Trust Administrator hereunder shall at all times be (a) an
institution the deposits of which are fully insured by the FDIC and (b) a
corporation or banking association organized and doing business under the
laws of any state or the United States of America, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authority and (c) with respect to every successor Trust Administrator
hereunder an institution the long-term unsecured debt obligations of which
are rated at least Baa3 or better by Xxxxx'x and BBB or better by S&P unless
the failure of the Trust Administrator's long-term unsecured debt obligations
to have such ratings would not result in the lowering of the ratings
originally assigned to any Class of Certificates. If such corporation or
banking association 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 10.06 the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trust Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Trust Administrator shall resign immediately in the manner and with the
effect specified in Section 10.07 hereof.
SECTION 10.07. Resignation and Removal of Trust Administrator.
The Trust Administrator may at any time resign and be discharged
from the trusts hereby created by (a) giving written notice of resignation to
the Depositor, the Sellers, the Trustee, the Master Servicer, the Special
Servicer and the Servicers and by mailing notice of resignation by first
class mail, postage prepaid, to the Certificateholders at their addresses
appearing on the Certificate Register, and to the Rating Agencies, not less
than 60 days before the date specified in such notice when, subject to
Section 10.08, such resignation is to take effect, and (b) acceptance by a
successor trust administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06.
If at any time the Trust Administrator shall cease to be eligible
in accordance with the provisions of Section 10.06 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Trust Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trust Administrator or of its
property shall be appointed, or any public officer shall take charge or
control of the Trust Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or if the Trust
Administrator breaches any of its obligations or representations hereunder,
then the Depositor may remove the Trust Administrator and appoint a successor
trust administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trust Administrator and one copy to the
successor trust administrator. The Trust Administrator may also be removed
at any time by the Trustee or the Holders of Certificates evidencing not less
than 50% of the Voting Rights evidenced by the Certificates. Notice of any
removal of the Trust Administrator and acceptance of appointment by the
successor trust administrator shall be given to the Rating Agencies by the
Depositor.
If no successor trust administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation or receipt of a notice of removal, the resigning Trust
Administrator may, at the Trust Fund's expense, petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
Notwithstanding the foregoing, if the Master Servicer shall for
any reason no longer be Master Servicer hereunder, at DLJMC's request, the
Trust Administrator shall resign, upon the selection and appointment of a
successor trust administrator meeting the qualifications set forth in
Section 10.06.
Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance of
appointment by the successor trust administrator as provided in Section 10.08
hereof.
SECTION 10.08. Successor Trust Administrator.
Any successor trust administrator appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor trust administrator an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trust administrator shall become effective and such successor
trust administrator, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Trust Administrator herein. The Depositor, upon receipt of all amounts due
it hereunder, and the predecessor trust administrator 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
trust administrator all such rights, powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of
Section 10.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trust administrator
as provided in this Section 10.08, the Depositor shall mail notice of the
succession of such trust administrator hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor trust administrator, the successor trust
administrator shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 10.09. Merger or Consolidation of Trust Administrator.
Any Person into which the Trust Administrator 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 Trust Administrator
shall be a party, or any Person succeeding to the business of the Trust
Administrator, shall be the successor of the Trust Administrator hereunder,
provided that such Person shall be eligible under the provisions of
Section 10.06 hereof 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 10.10. Appointment of Co-Trust Administrator or Separate Trust
Administrator.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Fund or property securing any Mortgage Note
may at the time be located, the Master Servicer and the Trust Administrator
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trust
Administrator to act as co-trust administrator or co-trust administrators
jointly with the Trust Administrator, or separate trust administrator or
separate trust administrators, of all or any part of the Trust Fund, and to
vest in such Person or Persons, in such capacity and for the benefit of the
applicable Certificateholders, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 10.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trust Administrator may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trust Administrator alone shall
have the power to make such appointment. No co-trust administrator or
separate trust administrator hereunder shall be required to meet the terms of
eligibility as a successor trust administrator under Section 10.06 and no
notice to Certificateholders of the appointment of any co-trust administrator
or separate trust administrator shall be required under Section 10.08.
Every separate trust administrator and co-trust administrator
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon
the Trust Administrator, except for any obligation of the Trust Administrator
under this Agreement to advance funds on behalf of the Master Servicer or the
Servicer, shall be conferred or imposed upon and exercised or performed by
the Trust Administrator and such separate trust administrator or co-trust
administrator jointly (it being understood that such separate trust
administrator or co-trust administrator is not authorized to act separately
without the Trust Administrator joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed by the Trust Administrator (whether as Trust
Administrator hereunder or as successor to the Master Servicer or the
Servicer), the Trust Administrator 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 Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trust administrator or co-trust administrator, but solely at
the direction of the Trust Administrator;
(b) no trust administrator hereunder shall be held personally liable by
reason of any act or omission of any other trust administrator hereunder; and
(c) the Master Servicer and the Trust Administrator acting jointly may at
any time accept the resignation of or remove any separate trust administrator
or co-trust administrator.
Any notice, request or other writing given to the Trust
Administrator shall be deemed to have been given to each of the then separate
trust administrators and co-trust administrators, as effectively as if given
to each of them. Every instrument appointing any separate trust
administrator or co-trust administrator shall refer to this Agreement and the
conditions of this Article X. Each separate trust administrator and co-trust
administrator, 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 Trust Administrator 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 Trust
Administrator. Every such instrument shall be filed with the Trust
Administrator and a copy thereof given to the Master Servicer or the
Servicers and the Depositor.
Any separate trust administrator or co-trust administrator may,
at any time, constitute the Trust Administrator, its agent or
attorney-in-fact, with full power and authority, to the extent not prohibited
by law, to do any lawful act under or in respect of this Agreement on its
behalf and in its name. The Trust Administrator shall not be responsible for
any action or inaction of any separate Trust Administrator or Co-Trust
Administrator. If any separate trust administrator or co-trust administrator
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 Trust Administrator, to the extent permitted by law, without
the appointment of a new or successor trust administrator.
SECTION 10.11. Office of the Trust Administrator.
The office of the Trust Administrator for purposes of receipt of
notices and demands is the Corporate Trust Office.
SECTION 10.12. Tax Return.
The Master Servicer and each Servicer, upon request, will furnish
the Trust Administrator with all such information related to the Mortgage
Loans in the possession of the Master Servicer or such Servicer as may be
reasonably required in connection with the preparation by the Trust
Administrator of all tax and information returns of the Trust Fund, and the
Trust Administrator shall sign such returns. The Master Servicer and each
Servicer, severally and not jointly, shall indemnify the Trust Administrator
for all reasonable costs, including legal fees and expenses, related to
errors in such tax returns due to errors only in such information provided by
the Master Servicer or by such Servicer.
SECTION 10.13. Commission Reporting.
(a) The Trust Administrator, each Servicer and the Master Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Trust
Administrator shall prepare on behalf of the Depositor any Forms 8-K and 10-K
customary for similar securities as required by the Exchange Act and the
rules and regulations of the Commission thereunder, and the Depositor shall
sign and the Trust Administrator shall file (via XXXXX) such Forms on behalf
of the Depositor. The Depositor hereby grants to the Trust Administrator a
limited power of attorney to execute and file each such document on behalf of
the Depositor. Such power of attorney shall continue until the earlier of
(i) receipt by the Trust Administrator from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust.
(b) Each Form 8-K shall be filed by the Trust Administrator within 15 days
after each Distribution Date, with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 31st of the calendar year following the calendar year during which
the Closing Date occurs (or such earlier date as may be required by the
Exchange Act and the rules and regulations of the Commission), the Trust
Administrator shall file a Form 10-K, in substance as required by applicable
law or applicable Commission staff's interpretations. Such Form 10-K shall
include as exhibits, each Servicer's and the Master Servicer's annual
statement of compliance described under Section 3.16 and the accountant's
report described under Section 3.17, in each case to the extent they have
been timely delivered to the Trust Administrator. If they are not so timely
delivered, the Trust Administrator shall file an amended Form 10-K including
such documents as exhibits promptly after they are delivered to the Trust
Administrator. The Trust Administrator shall have no liability with respect
to any failure to properly or timely prepare or file such periodic reports
resulting from or relating to the Trust Administrator's inability or failure
to obtain any information not resulting from its own negligence or willful
misconduct. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit T (the "Depositor Certification"), which shall be
signed by the senior officer of the Depositor in charge of securitization.
The Trust Administrator shall have no responsibility to file any items other
than those specified in this Section 10.13.
(c) Not later than 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, if
such day is not a Business Day, the immediately preceding Business Day), the
Trust Administrator shall sign a certification in the form attached hereto as
Exhibit U (the "Trust Administrator Certification") for the benefit of the
Depositor and its officers, directors and affiliates regarding certain
aspects of items 1 through 3 of the Depositor Certification. In addition,
the Trust Administrator shall, subject to the provisions of Sections 10.01
and 10.02 hereof, indemnify and hold harmless the Depositor and each Person,
if any, who "controls" the Depositor within the meaning of the 1933 Act and
its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Trust Administrator's obligations under this
Section 10.13 or any inaccuracy made in the Trust Administrator
Certification. If the indemnification provided for in this
Section 10.13(c) is unavailable or insufficient to hold harmless such
Persons, then the Trust Administrator shall contribute to the amount paid or
payable by such Persons as a result of the losses, claims, damages or
liabilities of such Persons in such proportion as is appropriate to reflect
the relative fault of the Depositor on the one hand and the Trust
Administrator on the other. The Trust Administrator acknowledges that the
Depositor is relying on the Trust Administrator's performance of its
obligations under this Section 10.13 in order to perform its obligations
under Section 10.13(b) above.
(d) (i) Not later than 15 calendar days before the date on which
the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission (or, if such day is not a Business Day, the immediately
preceding Business Day), the Master Servicer will deliver to the
Depositor and the Trust Administrator an Officer's Certificate for the
prior calendar year in substantially the form of Exhibit V-1 to this
Agreement. The Master Servicer agrees to indemnify and hold harmless
each of the Depositor, the Trust Administrator and each Person, if any,
who "controls" the Depositor or the Trust Administrator within the
meaning of the 1933 Act and their respective officers and directors
against any and all losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, fees and expenses
that such Person may sustain arising out of third party claims based on
(i) the failure of the Master Servicer to deliver or cause to be
delivered when required any Officer's Certificate required pursuant to
this Section 10.13(d)(i), or (ii) any material misstatement or omission
contained in any Officer's Certificate provided pursuant to this
Section 10.13(d)(i). If an event occurs that would otherwise result in
an indemnification obligation under clauses (i) or (ii) above, but the
indemnification provided for in this Section 10.13(d)(i) by the Master
Servicer is unavailable or insufficient to hold harmless such Persons,
then the Master Servicer shall contribute to the amount paid or payable
by such Persons as a result of the losses, claims, damages or
liabilities of such Persons in such proportion as is appropriate to
reflect the relative fault of the Depositor or Trust Administrator on
the one hand and the Master Servicer on the other. The Master Servicer
acknowledges that the Depositor and the Trust Administrator are relying
on the Master Servicer's performance of its obligations under this
Agreement in order to perform their respective obligations under this
Section 10.13.
(ii) Not later than 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission (or if such day is not a Business Day, the immediately
preceding Business Day), each Servicer, with respect to the Mortgage
Loans serviced by such Servicer, will deliver to the Trust
Administrator, and the Trust Administrator shall forward to the
Depositor and the Master Servicer, an Officer's Certificate for the
prior calendar year in substantially the form of Exhibit V-2 to this
Agreement. Each Servicer agrees to indemnify and hold harmless each of
the Depositor, the Trust Administrator, the Master Servicer and each
Person, if any, who "controls" the Depositor, the Trust Administrator
and the Master Servicer within the meaning of the 1933 Act and their
respective officers and directors against any and all losses,
penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, fees and expenses that such Person may sustain
arising out of third party claims based on (i) the failure of such
Servicer to deliver or cause to be delivered when required any
Officer's Certificate required pursuant to this Section 10.13(d)(ii),
or (ii) any material misstatement or omission contained in any
Officer's Certificate provided pursuant to this Section 10.13(d)(ii).
If an event occurs that would otherwise result in an indemnification
obligation under clauses (i) or (ii) above, but the indemnification
provided for in this Section 10.13(d)(ii) by such Servicer is
unavailable or insufficient to hold harmless such Persons, then such
Servicer shall contribute to the amount paid or payable by such Persons
as a result of the losses, claims, damages or liabilities of such
Persons in such proportion as is appropriate to reflect the relative
fault of the Depositor, Trust Administrator or the Master Servicer on
the one hand and such Servicer on the other. Each Servicer
acknowledges that the Depositor, the Trust Administrator and the Master
Servicer are relying on such Servicer's performance of its obligations
under this Agreement in order to perform their respective obligations
under this Section 10.13.
(e) Upon any filing with the Commission, the Trust Administrator shall
promptly deliver to the Depositor a copy of any executed report, statement or
information.
(f) If the Commission issues additional interpretative guidance or
promulgates additional rules or regulations, or if other changes in
applicable law occur, that would require the reporting arrangements, or the
allocation of responsibilities with respect thereto, described in this
Section 10.13, to be conducted differently than as described, the Depositor,
each Servicer, the Master Servicer and the Trust Administrator will
reasonably cooperate to amend the provisions of this Section 10.13 in order
to comply with such amended reporting requirements and such amendment of this
Section 10.13. Any such amendment shall be made in accordance with
Section 12.01 without the consent of the Certificateholders, and may result
in a change in the reports filed by the Trust Administrator on behalf of the
Trust under the Exchange Act. Notwithstanding the foregoing, the Depositor,
each Servicer, the Master Servicer and the Trust Administrator shall not be
obligated to enter into any amendment pursuant to this Section 10.13 that
adversely affects its obligations and immunities under this Agreement.
(g) Prior to January 31 of the first year in which the Trust Administrator
is able to do so under applicable law, the Trust Administrator shall file a
Form 15D Suspension Notification with respect to the Trust.
SECTION 10.14. Determination of Certificate Index.
On each Interest Determination Date, the Trust Administrator
shall determine each Certificate Index for the Accrual Period and inform the
Master Servicer and each Servicer of such rate and such rate shall be final
and binding, absent a manifest error of the Trust Administrator.
ARTICLE XI
TERMINATION
SECTION 11.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
The obligations and responsibilities of the Master Servicer, the
Special Servicer or the Servicers, the Back-Up Servicer, the Sellers, the
Depositor, the Trustee and the Trust Administrator created hereby with
respect to the related Group or Groups created hereby shall terminate upon
the earlier of:
(a) (i) with respect to Loan Group 1, Loan Group 2, Loan Group 3
and Loan Group 4, the purchase by the Terminating Entity, at its
election, of all Mortgage Loans in such Loan Groups and all property
acquired in respect of any remaining Mortgage Loan in such Loan Groups,
which purchase right the Terminating Entity may exercise at its sole
and exclusive election as of any Distribution Date (such applicable
Distribution Date with respect to such Mortgage Loans being herein
referred to as the "Optional Termination Date") on or after the date on
which the aggregate Principal Balance of the Mortgage Loans in such
Loan Groups, at the time of the purchase is less than or equal to 10%
of the Aggregate Groups 1-4 Collateral Balance as of the Initial
Cut-off Date;
(ii) with respect to Loan Group 5, the purchase by the Terminating Entity,
at its election, of all Mortgage Loans in such Loan Group and all
property acquired in respect of any remaining Mortgage Loan in such
Loan Group, which purchase right the Terminating Entity may exercise at
its sole and exclusive election as of any Distribution Date (such
applicable Distribution Date with respect to such Mortgage Loans being
herein referred to as the "Optional Termination Date") on or after the
date on which the aggregate Principal Balance of the Mortgage Loans in
such Loan Group, at the time of the purchase is less than or equal to
10% of the Aggregate Loan Group Balance for Loan Group 5 as of the
Initial Cut-off Date; or
(iii) with respect to Loan Group 6, the purchase by the Terminating Entity,
at its election, of all Mortgage Loans in such Loan Group and all
property acquired in respect of any remaining Mortgage Loan in such
Loan Group, which purchase right the Terminating Entity may exercise at
its sole and exclusive election as of any Distribution Date (such
applicable Distribution Date with respect to such Mortgage Loans being
herein referred to as the "Optional Termination Date") on or after the
date on which the aggregate Principal Balance of the Mortgage Loans in
such Loan Group, at the time of the purchase is less than or equal to
10% of the Aggregate Loan Group Balance for Loan Group 6 as of the
Initial Cut-off Date;
(b) the later of (i) twelve months after the maturity of the last Mortgage
Loan remaining in the Trust Fund, (ii) the liquidation (or any advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (iii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement; or
(c) (i) with respect to Loan Group 1, Loan Group 2, Loan Group 3 and Loan
Group 4, the purchase by the Terminating Auction Purchaser of all
Mortgage Loans in such Loan Groups and all property acquired in respect
of any remaining Mortgage Loan in such Loan Group (with respect to Loan
Group 1, Loan Group 2, Loan Group 3 and Loan Group 4, the "Trust
Collateral") as described below;
(ii) with respect to Loan Group 5, the purchase by the
Terminating Auction Purchaser of all Mortgage Loans in Loan Group 5 and
all property acquired in respect of any remaining Mortgage Loan in such
Loan Group (with respect to Loan Group 5, the "Trust Collateral") as
described below; or
(iii) with respect to Loan Group 6, the purchase by the
Terminating Auction Purchaser of all Mortgage Loans in Loan Group 6 and
all property acquired in respect of any remaining Mortgage Loan in such
Loan Group (with respect to Loan Group 6, the "Trust Collateral") as
described below.
In no event shall the trust created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor
of the descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United
States to Great Britain, living on the date of execution of this Agreement or
(ii) the Distribution Date following the third anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled maturity date
as of the related Cut-off Date.
The "Mortgage Loan Purchase Price" for any such Optional
Termination shall be equal to the greater of (a) the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan in the applicable Loan
Group(s) (other than in respect of REO Property) plus accrued and unpaid
interest thereon from the date to which such interest was paid or advanced at
the applicable Mortgage Rate, to but not including the Due Date in the month
of the final Distribution Date (or the Net Mortgage Rate with respect to any
related Mortgage Loan currently serviced by the entity exercising such
Optional Termination) and (ii) with respect to any REO Property, the lesser
of (x) the appraised value of any REO Property as determined by the higher of
two appraisals completed by two independent appraisers selected by the
Depositor at the expense of the Depositor and (y) the Stated Principal
Balance of each related Mortgage Loan related to any REO Property, in each
case and (iii) any remaining unreimbursed Advances, Servicing Advances and
unpaid Servicing Fees (other than any remaining unreimbursed Advances and
Servicing Advances and unpaid Servicing Fees, if any, due to the Terminating
Entity) and other amounts payable to the Trustee and Trust Administrator (the
sum of (i), (ii) and (iii), collectively, the "Par Value") and (b) the Fair
Market Value of all of the property of the Trust related to the Loan Group(s)
subject to such Optional Termination.
The "Fair Market Value" shall be the fair market value of all of
the property of the Trust related to the Loan Group(s) subject to an Optional
Termination, as agreed upon between the Terminating Entity and a majority of
the holders of the Class AR-L Certificates; provided, however, that if the
Terminating Entity and a majority of the holders of the Class AR-L
Certificates do not agree upon the fair market value of such property of the
Trust, the Terminating Entity, or an agent appointed by the Terminating
Entity, shall solicit bids for such property of the Trust until it has
received three bids, and the Fair Market Value shall be equal to the highest
of such three bids. The Trust Administrator shall give notice to the Rating
Agencies of any election to purchase Mortgage Loans pursuant to this Section
and of the applicable Optional Termination Date.
(d) On any Distribution Date on or after the date on which the aggregate
Principal Balance of the Mortgage Loans in Loan Group 1, Loan Group 2, Loan
Group 3 and Loan Group 4 is less than 5% of the Aggregate Groups 1-4
Collateral Balance as of the Initial Cut-off Date (a "Terminating Auction
Date"), the Trust Administrator shall solicit bids for the related Trust
Collateral from at least three institutions that are regular purchasers
and/or sellers in the secondary market of residential whole mortgage loans
similar to the Mortgage Loans. If the Trust Administrator receives at least
three bids for the related Trust Collateral, and one of such bids is equal to
or greater than the Par Value, the Trust Administrator shall sell the related
Trust Collateral to the highest bidder (a "Terminating Auction Purchaser") at
the price offered by the Terminating Auction Purchaser (a "Mortgage Loan
Terminating Auction Price"). If the Trust Administrator receives less than
three bids, or does not receive any bid that is equal to or greater than the
Par Value, the Trust Administrator shall, on each six-month anniversary of
the initial Terminating Auction Date, repeat these auction procedures until
the Trust Administrator receives a bid that is equal to or greater than the
Par Value, and upon receipt of such bid shall sell the related Trust
Collateral to the Terminating Auction Purchaser at that Mortgage Loan
Terminating Auction Price; provided, however, that the Trust Administrator
shall not be required to repeat these auction procedures on any Distribution
Date for any six-month anniversary of the initial Terminating Auction Date
unless the Trust Administrator reasonably believes that there is a reasonable
likelihood of receiving a bid in excess of the Par Value. The Trust
Administrator shall give notice to the Rating Agencies and each Servicer that
is servicing any of the related Mortgage Loans of the sale of the related
Trust Collateral pursuant to this Section 11.01 (a "Terminating Auction
Sale") and of the Terminating Auction Date. Notwithstanding anything to the
contrary herein, the Terminating Auction Purchaser shall not be the
Depositor, DLJMC or any of their respective Affiliates.
(e) On any Distribution Date on or after the date on which the aggregate
Principal Balance of the Mortgage Loans in Loan Group 5 is less than 5% of
the Aggregate Loan Group Balance for Loan Group 5 as of the Initial Cut-off
Date (a "Terminating Auction Date"), the Trust Administrator shall solicit
bids for the related Trust Collateral from at least three institutions that
are regular purchasers and/or sellers in the secondary market of residential
whole mortgage loans similar to the Mortgage Loans. If the Trust
Administrator receives at least three bids for the related Trust Collateral,
and one of such bids is equal to or greater than the Par Value, the Trust
Administrator shall sell the related Trust Collateral to the highest bidder
(a "Terminating Auction Purchaser") at the price offered by the Terminating
Auction Purchaser (a "Mortgage Loan Terminating Auction Price"). If the
Trust Administrator receives less than three bids, or does not receive any
bid that is equal to or greater than the Par Value, the Trust Administrator
shall, on each six-month anniversary of the initial Terminating Auction Date,
repeat these auction procedures until the Trust Administrator receives a bid
that is equal to or greater than the Par Value, and upon receipt of such bid
shall sell the related Trust Collateral to the Terminating Auction Purchaser
at that Mortgage Loan Auction Price; provided, however, that the Trust
Administrator shall not be required to repeat these auction procedures on any
Distribution Date for any six-month anniversary of the initial Terminating
Auction Date unless the Trust Administrator reasonably believes that there is
a reasonable likelihood of receiving a bid in excess of the Par Value. The
Trust Administrator shall give notice to the Rating Agencies and each
Servicer that is servicing any of the related Mortgage Loans of the sale of
the related Trust Collateral pursuant to this Section 11.01 (a "Terminating
Auction Sale") and of the Terminating Auction Date. Notwithstanding anything
to the contrary herein, the Terminating Auction Purchaser shall not be the
Depositor, DLJMC or any of their respective Affiliates.
(f) On any Distribution Date on or after the date on which the aggregate
Principal Balance of the Mortgage Loans in Loan Group 6 is less than 5% of
the Aggregate Loan Group Balance for Loan Group 6 as of the Initial Cut-off
Date (a "Terminating Auction Date"), the Trust Administrator shall solicit
bids for the related Trust Collateral from at least three institutions that
are regular purchasers and/or sellers in the secondary market of residential
whole mortgage loans similar to the Mortgage Loans. If the Trust
Administrator receives at least three bids for the related Trust Collateral,
and one of such bids is equal to or greater than the Par Value, the Trust
Administrator shall sell the related Trust Collateral to the highest bidder
(a "Terminating Auction Purchaser") at the price offered by the Terminating
Auction Purchaser (a "Mortgage Loan Terminating Auction Price"). If the
Trust Administrator receives less than three bids, or does not receive any
bid that is equal to or greater than the Par Value, the Trust Administrator
shall, on each six-month anniversary of the initial Terminating Auction Date,
repeat these auction procedures until the Trust Administrator receives a bid
that is equal to or greater than the Par Value, and upon receipt of such bid
shall sell the related Trust Collateral to the Terminating Auction Purchaser
at that Mortgage Loan Auction Price; provided, however, that the Trust
Administrator shall not be required to repeat these auction procedures on any
Distribution Date for any six-month anniversary of the initial Terminating
Auction Date unless the Trust Administrator reasonably believes that there is
a reasonable likelihood of receiving a bid in excess of the Par Value. The
Trust Administrator shall give notice to the Rating Agencies and each
Servicer that is servicing any of the related Mortgage Loans of the sale of
the related Trust Collateral pursuant to this Section 11.01 (a "Terminating
Auction Sale") and of the Terminating Auction Date. Notwithstanding anything
to the contrary herein, the Terminating Auction Purchaser shall not be the
Depositor, DLJMC or any of their respective Affiliates.
SECTION 11.02. Determination of the Terminating Entity.
(a) If any Servicer intends to be the Terminating Entity, such party must
give written notice to the Trust Administrator no later than twenty (20) days
prior to the first day of the Optional Termination Notice Period. Such
notice shall also indicate the Loan Group(s) of the Mortgage Loans to be
repurchased. Upon receiving such notice, the Trust Administrator shall
immediately request from DLJMC and DLJMC shall deliver no later than
seventeen (17) days prior to the first day of the Optional Termination Notice
Period a letter indicating whether or not DLJMC retains the servicing rights
to any Mortgage Loan in any of the related Loan Groups.
(b) (A) With respect to the purchase of the Mortgage Loans in Loan
Group 1, Loan Group 2, Loan Group 3 and Loan Group 4, the Trust
Administrator shall determine the "Terminating Entity" as follows:
(i) DLJMC, if it is the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date;
(ii) SPS, if (a) DLJMC is not the owner of the
servicing rights with respect to any such Mortgage Loans on the
Optional Termination Date and (b) SPS is a Servicer with respect to
any such Mortgage Loans on the Optional Termination Date and SPS has
given notice to the Trust Administrator pursuant to Section 11.02(a)
above; or
(iii) the Majority Servicer on the Optional
Termination Date, if (a) DLJMC is not the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date and (b) SPS has not given notice to the Trust
Administrator pursuant to Section 11.02(a) above.
(B) With respect to the purchase of the Mortgage Loans in
Loan Group 5, the Trust Administrator shall determine the "Terminating
Entity" as follows:
(i) DLJMC, if it is the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date;
(ii) SPS, if (a) DLJMC is not the owner of the
servicing rights with respect to any such Mortgage Loans on the
Optional Termination Date and (b) SPS is a Servicer with respect to
any such Mortgage Loans on the Optional Termination Date and SPS has
given notice to the Trust Administrator pursuant to Section 11.02(a)
above; or
(iii) the Majority Servicer on the Optional
Termination Date, if (a) DLJMC is not the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date and (b) SPS has not given notice to the Trust
Administrator pursuant to Section 11.02(a) above.
(C) With respect to the purchase of the Mortgage Loans in
Loan Group 6, the Trust Administrator shall determine the "Terminating
Entity" as follows:
(i) DLJMC, if it is the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date;
(ii) SPS, if (a) DLJMC is not the owner of the
servicing rights with respect to any such Mortgage Loans on the
Optional Termination Date and (b) SPS is a Servicer with respect to
any such Mortgage Loans on the Optional Termination Date and SPS has
given notice to the Trust Administrator pursuant to Section 11.02(a)
above; or
(iii) the Majority Servicer on the Optional
Termination Date, if (a) DLJMC is not the owner of the servicing
rights with respect to any such Mortgage Loans on the Optional
Termination Date and (b) SPS has not given notice to the Trust
Administrator pursuant to Section 11.02(a) above.
(c) No later than fifteen (15) days prior to the first day of the Optional
Termination Notice Period, the Trust Administrator shall provide notice to
each Servicer that is a servicer of any of the Mortgage Loans in the related
Loan Group(s) of the identity of the Terminating Entity for such Loan
Group(s).
SECTION 11.03. Procedure Upon Optional Termination or Terminating Auction
Sale.
(a) In case of any Optional Termination, the Terminating Entity shall, no
later than ten (10) days prior to the first day of the Optional Termination
Notice Period, notify the Trustee and Trust Administrator of such Optional
Termination Date and of the applicable purchase price of the Mortgage Loans
to be purchased. Upon purchase by the Terminating Entity of any Mortgage
Loans pursuant to Section 11.01, the Trust Administrator shall notify each
Servicer that is servicing any of such Mortgage Loans of such purchase.
(b) Any purchase of the Mortgage Loans by the Terminating Entity shall be
made on an Optional Termination Date by deposit of the applicable purchase
price into the Certificate Account, as applicable, before the Distribution
Date on which such purchase is effected. Upon receipt by the Trust
Administrator of an Officer's Certificate of the Terminating Entity
certifying as to the deposit of such purchase price into the Certificate
Account, the Trustee, the Trust Administrator and each co-trust administrator
and separate trust administrator, if any, then acting as such under this
Agreement, shall, upon request and at the expense of the Terminating Entity
execute and deliver all such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably requested by the Terminating
Entity to vest title in the Terminating Entity in the Mortgage Loans so
purchased and shall transfer or deliver to the Terminating Entity the
purchased Mortgage Loans. Any distributions on the Mortgage Loans which have
been subject to an Optional Termination received by the Trust Administrator
subsequent to (or with respect to any period subsequent to) the Optional
Termination Date shall be promptly remitted by it to the Terminating Entity.
(c) Any purchase of the Trust Collateral by the related Terminating Auction
Purchaser shall be made on an Terminating Auction Date by receipt of the
Trust Administrator of the related Mortgage Loan Terminating Auction Price
from the Terminating Auction Purchaser, and deposit of such Mortgage Loan
Terminating Auction Price into the Certificate Account by the Trust
Administrator before the Distribution Date on which such purchase is
effected. Upon deposit of such purchase price into the Certificate Account,
the Trustee and the Trust Administrator and each co-trust administrator and
separate trust administrator, if any, then acting as such under this
Agreement, shall, upon request and at the expense of the Terminating Auction
Purchaser execute and deliver all such instruments of transfer or assignment,
in each case without recourse, as shall be reasonably requested by the
Terminating Auction Purchaser to vest title in the Terminating Auction
Purchaser in the Trust Collateral so purchased and shall transfer or deliver
to the Terminating Auction Purchaser the purchased Trust Collateral.
(d) Notice of the Distribution Date on which the Trust Administrator
anticipates that the final distribution shall be made on a Class of
Certificates (whether upon Optional Termination, Terminating Auction Sale or
otherwise), shall be given promptly by the Trust Administrator by first class
mail to Holders of the affected Certificates. Such notice shall be mailed no
earlier than the 15th day and not later than the 10th day preceding the
applicable Optional Termination Date, Terminating Auction Date or date of
final distribution, as the case may be. Such notice shall specify (i) the
Distribution Date upon which final distribution on the affected Certificates
will be made upon presentation and surrender of such Certificates at the
office or agency therein designated, (ii) the amount of such final
distribution and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, such distribution being made only upon
presentation and surrender of such Certificates at the office or agency
maintained for such purposes (the address of which shall be set forth in such
notice).
(e) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trust Administrator shall give a
second written notice to the remaining such Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Trust
Administrator may take appropriate steps, or may appoint an 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 the Trust Fund.
(f) Notwithstanding anything to the contrary herein, the occurrence of an
Optional Termination shall be subject to, and shall in no way adversely
affect the right of (1) Xxxxx Fargo to continue servicing and collecting its
Servicing Fee for any Xxxxx Fargo Serviced Mortgage Loan that remains
outstanding at the time of such Optional Termination and (2) WMB to continue
servicing and collecting its Servicing Fee for any WMB Serviced Mortgage Loan
that remains outstanding at the time of such Optional Termination.
SECTION 11.04. Additional Termination Requirements.
(a) In the event the Terminating Entity exercises its purchase option
pursuant to Section 11.01(A) or a Terminating Auction Sale shall have
occurred pursuant to Section 11.01(c), the related subsidiary REMIC shall be
terminated in accordance with the following additional requirements, unless
the Trustee and the Trust Administrator have received an Opinion of Counsel
to the effect that the failure to comply with the requirements of this
Section will not (i) result in the imposition of taxes on a "prohibited
transaction" of any REMIC created hereunder, as described in Section 860F of
the Code, or (ii) cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date set forth in the
notice given by Terminating Entity under Section 11.03, the Holder of
the Class AR or Class AR-L Certificates shall adopt a plan of complete
liquidation of REMIC I, REMIC II or REMIC III, as applicable; and
(ii) at or after the time of adoption of any such plan of complete
liquidation for REMIC I, REMIC II or REMIC III, as applicable, at or
prior to the final Distribution Date, the Trustee shall sell all of the
assets of REMIC I, REMIC II or REMIC III, as applicable, to the
Depositor for cash.
(b) Upon the exercise of an Optional Termination by the Terminating Entity
or upon the occurrence of a Terminating Auction Sale in respect of any two of
REMIC I, REMIC II or REMIC III, as applicable, pursuant to paragraph (a) of
this Section, followed by the exercise of an Optional Termination by the
Terminating Entity or upon the occurrence of a Terminating Auction Sale in
respect of the remaining subsidiary REMIC (the "Remaining Subsidiary REMIC")
pursuant to Section 11.01, each remaining REMIC shall be terminated in
accordance with the following additional requirements, unless the Trustee and
the Trust Administrator have received an Opinion of Counsel to the effect
that the failure to comply with the requirements of this Section will not
(i) result in the imposition of taxes on a "prohibited transaction" of a
REMIC, as described in Section 860F of the Code, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) concurrently with the adoption of the plan of complete liquidation of
the Remaining Subsidiary REMIC, as set forth in paragraph (a) of this
Section, the Holder of the Class AR or Class AR-L Certificates, as
applicable, shall adopt a plan of complete liquidation of each
remaining REMIC; and
(ii) at or after the time of adoption of any such plan of complete
liquidation for each such remaining REMIC, at or prior to the final
Distribution Date of the Remaining Subsidiary REMIC to be terminated,
the Trustee shall sell all of the assets of each such remaining REMIC
to the Depositor for cash.
(c) By its acceptance of a Class AR or Class AR-L Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to
take such other action in connection therewith as may be reasonably required
to liquidate and otherwise terminate any REMIC created pursuant to this
Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Servicers, the Back-Up Servicer, the Special Servicer,
the Sellers, the Trust Administrator and the Trustee, without the consent of
any of the Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be inconsistent
with any other provisions herein or in the Prospectus Supplement,
(iii) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the
Trust Fund as a REMIC at all times that any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any federal
income tax on the Trust Fund pursuant to the Code that would be a claim
against the Trust Fund, provided that the Trustee has received an
Opinion of Counsel to the effect that (A) such action is necessary or
desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such federal income tax and (B) such
action will not adversely affect the status of the Trust Fund as a
REMIC or adversely affect in any material respect the interests of any
Certificateholder,
(iv) in connection with the appointment of a successor servicer, to modify,
eliminate or add to any of the servicing provisions, provided the
Rating Agencies confirm the rating of the Certificates, or
(v) to make any other provisions with respect to matters or questions
arising under this Agreement that are not materially inconsistent with
the provisions of this Agreement, provided that such action shall not
adversely affect in any material respect the interests of any
Certificateholder or cause an Adverse REMIC Event. Any Amendment
pursuant to Section 12.01(a)(v) shall not be deemed to adversely affect
in any material respect the interests of any Certificateholder if a
letter is obtained from each Rating Agency stating that such amendment
would not result in the downgrading or withdrawal of the respective
ratings then assigned to the Certificates.
(b) Except as provided in Section 12.01(c), this Agreement may be amended
from time to time by the Depositor, the Master Servicer, the Servicers, the
Back-Up Servicer, the Special Servicer, the Sellers, the Trust Administrator
and the Trustee with the consent of the Holders of Certificates evidencing,
in the aggregate, not less than 66 2/3% of the Voting Rights of all the
Certificates 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 Holders of the Certificates; provided,
however, that no such amendment may (i) reduce in any manner the amount of,
delay the timing of or change the manner in which payments received on or
with respect to Mortgage Loans are required to be distributed with respect to
any Certificate without the consent of the Holder of such Certificate,
(ii) adversely affect in any material respect the interests of the Holders of
a Class of Certificates in a manner other than as set forth in (i) above
without the consent of the Holders of Certificates evidencing not less than
66 2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Stated
Principal Balance of the Mortgage Loans specified in
Section 11.01(a) relating to optional termination of the Trust Fund or
(v) modify the provisions of this Section 12.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. 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 Trust Administrator may prescribe.
(c) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Special Servicer, the Servicers, the Back-Up Servicer,
the Trust Administrator and the Trustee for the purpose of making one or more
REMIC elections with respect to one or more Classes of Certificates delivered
to the Trustee and issuing one or more additional classes of certificates
representing interests in the Classes of Certificates delivered to the
Trustee; provided, however, such amendment shall require the consent of 100%
of the Holders of the Certificates of the Class or Classes delivered to the
Trust Administrator and such amendment shall not cause an Adverse REMIC Event.
(d) Promptly after the execution of any amendment to this Agreement, the
Trust Administrator shall furnish written notification of the substance of
such amendment to each Certificateholder, and the Rating Agencies.
(e) Prior to the execution of any amendment to this Agreement, each of the
Trustee and the Trust Administrator shall receive and be entitled to
conclusively rely on an Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that the execution of such amendment is
authorized and permitted by this Agreement. The Trustee and the Trust
Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's or the Trust Administrator's own
rights, duties or immunities under this Agreement.
(f) The Master Servicer and the Trust Administrator may consent to any
amendment of a Designated Servicing Agreement to make any other provisions
with respect to matters or questions arising under such Designated Servicing
Agreement or this Agreement that are not materially inconsistent with the
provisions of such Designated Servicing Agreement and this Agreement,
provided that such action shall not adversely affect in any material respect
the interests of any Certificateholder or cause an Adverse REMIC Event. Any
amendment pursuant to this Section 12.01(f) shall not be deemed to adversely
affect in any material respect the interests of any Certificateholders if a
letter is obtained from each Rating Agency stating that such amendment would
not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
(g) Neither the Master Servicer nor the Trust Administrator shall consent
to any amendment of a Designated Servicing Agreement which shall adversely
affect in any material respect the interests of the Holders of a Class of
Certificates without the consent of the Holders of Certificates evidencing
not less than 66-2/3% of the Voting Rights of such Class.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment
of a Designated Servicing Agreement, but it shall be sufficient if such
consent shall approve the substance thereof. 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
Trust Administrator may prescribe.
Promptly after the execution of any amendment to a Designated
Servicing Agreement pursuant to this Section 12.01(f) or (g), the Trust
Administrator shall furnish, upon written notice of such amendment, written
notification of the substance of such amendment to each Certificateholder,
and the Rating Agencies.
(h) Notwithstanding any other provision of this Agreement, no amendment
shall be made affecting the rights of the Holders of the Class P Certificates
to receive Assigned Prepayment Premiums, including any amendment to
Section 3.23, without the consent of 100% of the Holders of the Class P
Certificates.
SECTION 12.02. Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) 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. Such recordation, if any, shall be effected by the Depositor
at its expense, but only upon direction by the Trustee (acting at the
direction of the holders of Certificates evidencing a majority of the
aggregate Class Principal Balance) accompanied by an Opinion of Counsel (at
the Depositor's expense) to the effect that non-recordation materially and
adversely affects the interests of the Certificateholders.
(b) 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 12.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.04. Intention of Parties.
(a) It is the express intent of the Depositor, the Sellers, the Master
Servicer, the Special Servicer, the Servicers, the Trust Administrator and
the Trustee that (i) the conveyance by DLJMC of the Mortgage Loans to the
Depositor pursuant to the Assignment and Assumption Agreement and (v) the
conveyance by the Depositor to the Trustee as provided for in Section 2.01 of
each of the Sellers' and Depositor's right, title and interest in and to the
Mortgage Loans be, and be construed as, an absolute sale and assignment by
DLJMC to the Depositor and by the Depositor to the Trustee of the Mortgage
Loans for the benefit of the Certificateholders. Further, it is not intended
that any conveyance be deemed to be a pledge of the Mortgage Loans by DLJMC
to the Depositor or by the Depositor to the Trustee to secure a debt or other
obligation. However, in the event that the Mortgage Loans are held to be
property of DLJMC, WMB or the Depositor, as applicable, or if for any reason
the Assignment and Assumption Agreement or this Agreement is held or deemed
to create a security interest in the Mortgage Loans, then it is intended that
(i) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for in Section 2.01 shall be deemed to be a grant by the
Sellers and the Depositor to the Trustee on behalf of the Certificateholders,
to secure payment in full of the Secured Obligations (as defined below), of a
security interest in all of the Sellers' and the Depositor's right (including
the power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to the Mortgage Loans, including the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents
in the related Mortgage Files, and all accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
uncertificated securities consisting of, arising from or relating to (A) the
Mortgage Loans, including with respect to each Mortgage Loan, the Mortgage
Note and related Mortgage, and all other documents in the related Trustee
Mortgage Files, and including any Qualified Substitute Mortgage Loans; (B)
pool insurance policies, hazard insurance policies and any bankruptcy bond
relating to the foregoing, if applicable; (C) the Certificate Account; (D)
the Collection Account; (E) all amounts payable after the Cut-off Date to the
holders of the Mortgage Loans in accordance with the terms thereof; (F) all
income, payments, proceeds and products of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; and (G) all cash and non-cash
proceeds of any of the foregoing; (iii) the possession by the Trustee or any
other agent of the Trustee of Mortgage Notes or such other items of property
as constitute instruments, money, documents, advices of credit, letters of
credit, goods, certificated securities or chattel paper shall be deemed to be
a "possession by the secured party," or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-313, 8-313 or 8-321 thereof); and (iv) 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,
securities intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
"Secured Obligations" means (i) the rights of each Certificateholder to be
paid any amount owed to it under this Agreement and (ii) all other
obligations of the Sellers and the Depositor under this Agreement and the
Assignment and Assumption Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's direction, the
Master Servicer or the Servicers, the Trustee and the Trust Administrator,
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans and the other property
described above, such security interest would be deemed to be a perfected
security interest of first priority as applicable. The Depositor shall
prepare and file, at the related Servicer's expense, all filings necessary to
maintain the effectiveness of any original filings necessary under the
Uniform Commercial Code as in effect in any jurisdiction to perfect the
Trustee's security interest in or lien on the Mortgage Loans, including
without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or any Servicer or the Depositor in any Mortgage Loan.
SECTION 12.05. Notices.
In addition to other notices provided under this Agreement, the
Trust Administrator shall notify the Rating Agencies and the Back-Up Servicer
in writing: (a) of any substitution of any Mortgage Loan; (b) of any payment
or draw on any insurance policy applicable to the Mortgage Loans; (c) of the
final payment of any amounts owing to a Class of Certificates; (d) any Event
of Default under this Agreement; and (e) in the event any Mortgage Loan is
purchased in accordance with this Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when received (i) in the case of
the Depositor, Credit Suisse First Boston Mortgage Securities Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx
(with a copy to DLJ Mortgage Acceptance Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx); (ii) in the case of the
Trustee, the Corporate Trust Office, Attention: Xxxxxxx X. Xxxxxxxx, or such
other address as may hereafter be furnished to the Depositor in writing by
the Trustee; (iii) in the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx (with a copy to DLJ Mortgage
Acceptance Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxx), or such other address as may be hereafter furnished
to the Depositor and the Trustee by DLJMC in writing; (iv) in the case of
WMB, 1201 Third Avenue, WMT 1706, Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Servicing Compliance, with a copy to Washington Mutual Legal Department, 0000
Xxxxx Xxxxxx, XXX 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention: WMB, or such
other address as may be hereafter furnished in writing to the Depositor and
the Trustee by WMB; (v) in the case of the Trust Administrator, the Corporate
Trust Office; (vi) in the case of Xxxxx Fargo, as Master Servicer, Corporate
Trust Office, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000,
Attention: CSFB ARMT 2005-10 or such other address as may be hereafter
furnished to the Depositor or the Trustee in writing by Xxxxx Fargo; (vii) in
the case of Xxxxx Fargo, as Servicer, with respect to servicing issues, Xxxxx
Xxxxx Xxxx, X.X., 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attention: Xxxx
X. Xxxxx, MAC-X2401-042, Fax: (000) 000-0000, and with respect to all other
issues, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Xxxxxxxx, MAC-X3902-02X, Fax: (000) 000-0000, in
each case with a copy to Xxxxx Xxxxx Xxxx, X.X., 0 Xxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000-0000, Attention: General Counsel, MAC-X2401-06T, or such other
address as may be hereafter furnished in writing by Xxxxx Fargo; (viii) in
the case of SPS, 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: Xxxxxx Xxxxx, with a copy to 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000, Attention: General Counsel; (ix) in the case of Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (x) in
the case of Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (xi) in the
case of Dominion Bond Rating Service, Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid.
SECTION 12.06. 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.
SECTION 12.07. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, 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 constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Agreement, unless such Holder previously shall have given to the Trust
Administrator a written notice of an Event of Default and of the continuance
thereof, as provided herein, and unless the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates shall also have made written request upon the Trust
Administrator to institute such action, suit or proceeding in its own name as
Trust Administrator hereunder and shall have offered to the Trust
Administrator such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trust
Administrator, 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; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trust Administrator, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 12.07, each and every Certificateholder and the Trust
Administrator shall be entitled to such relief as can be given either at law
or in equity.
SECTION 12.08. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders
shall not be personally liable for obligations of the Trust Fund, that the
interests in the Trust Fund represented by the Certificates shall be
nonassessable for any reason whatsoever, and that the Certificates, upon due
authentication thereof by the Trust Administrator pursuant to this Agreement,
are and shall be deemed fully paid.
SECTION 12.09. Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets; or
(iii) engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until 366 days after the Certificates have been
paid.
SECTION 12.10. Non-Solicitation.
From and after the date of this Agreement, each of the Depositor,
the Sellers, the Master Servicer, the Servicers, the Trust Administrator and
the Trustee agrees that it will not take any action or permit or cause any
action to be taken by any of its agents or affiliates, or by any independent
contractors on any such party's behalf, to personally, by telephone, by mail,
or electronically by e-mail or through the Interest or otherwise, solicit the
borrower or obligor under any Mortgage Loan to refinance the Mortgage Loan,
in whole or in part. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Depositor, the Sellers, the Master
Servicer, any Servicer, the Trust Administrator or the Trustee or any
affiliate of any such party that originates mortgage loans in the normal
course, which are directed to the general public at large, or segments
thereof, including, without limitation, mass mailings based on commercially
acquired mailing lists or newspaper, radio and television advertisements
shall not constitute solicitation under this Section 12.10, provided, that no
segment of the general public shall consist primarily of the borrowers or
obligors under the Mortgage Loans. None of the Depositor, the Sellers, the
Master Servicer, a Servicer, the Trust Administrator or the Trustee shall
permit the sale of the name of any Mortgagor or any list of names that
consist primarily of the Mortgages to any Person.
ARTICLE XIII
SPS AND THE MASTER SERVICER
SECTION 13.01. Reports and Notices.
(a) SPS shall provide the Master Servicer the following notices and reports
in a timely manner and such notices and reports shall be prepared using the
same methodology and calculations used in its standard servicing reports to
the Master Servicer. SPS shall send all such notices and reports to the
Master Servicer in a format used for its standard servicing reports. SPS
agrees to provide the Master Servicer with read-only access to those portions
of its default management and servicing platform that relate to the SPS
Mortgage Loans.
(i) All SPS Mortgage Loans - On each Data Remittance Date, commencing in
October 2005, SPS shall provide the Master Servicer a report of each
SPS Mortgage Loan indicating the information contained in Exhibit P for
the period relating to the related Distribution Date.
(ii) Liquidated Mortgage Loans - On each Data Remittance Date SPS shall
provide the Master Servicer with a report listing each SPS Mortgage
Loan that has liquidated or been satisfied in full indicating the
information, or information substantially similar to the information,
contained in Exhibit P together with all supporting documentation for
the prior calendar month.
(iii) Mortgage Guaranty Insurance Policy Claims - Where applicable, SPS shall
provide the Master Servicer with copies of all claims filed under any
Mortgage Guaranty Insurance Policy and the actual amount paid, together
with the explanation of benefits ("EOB") for each claim filed under any
Mortgage Guaranty Insurance Policy in respect of a SPS Mortgage Loan.
SPS shall remit the related Insurance Proceeds within five (5) Business
Days after their receipt, submit to the Master Servicer a foreclosure
settlement statement substantially in the form attached hereto as
Exhibit Q and agrees not to deduct any related expenses prior to the
Master Servicer's approval of the related foreclosure settlement
statement.
(iv) Loss and Delinquency Test - SPS shall provide the Master Servicer with
all information required for calculating the Loss and Delinquency Test,
including but not limited to:
(A) Loan level and aggregate Stated Principal Balance of all SPS Mortgage
Loans 61-90 days delinquent including any loan(s) delinquent on a
bankruptcy plan;
(B) Loan level and aggregate Stated Principal Balance of all SPS Mortgage
Loans 91 days and greater (that are not in foreclosure) including
any loan(s) delinquent on a bankruptcy plan;
(C) Loan level and aggregate Stated Principal Balance of all SPS Mortgage
Loans that are active foreclosures;
(D) Loan level and aggregate Stated Principal Balance of all SPS Mortgage
Loans that are active REOs; and
(E) Due dates for all SPS Mortgage Loans reported under the categories
listed above in (A) through (D).
(b) SPS shall make its servicing personnel available during normal business
hours to respond, either orally or in writing by facsimile transmission,
express mail, or electronic mail, to reasonable inquiries transmitted by the
Master Servicer with respect to any SPS Mortgage Loan, provided that SPS
shall only be required to provide information that is readily accessible and
available to its servicing personnel.
SECTION 13.02. Master Servicer's Oversight With Respect to the SPS
Mortgage Loans.
(a) The Master Servicer shall be permitted to provide SPS with advice,
reports and recommendations regarding SPS's collection efforts and the
management of specific SPS Mortgage Loans, which advice may be made in
writing, in the form of electronic mail or verbally. Such advice shall be
based on an evaluation of the information provided pursuant to
Section 13.01(a). The advice may include comparable analysis of the
performance of the SPS Mortgage Loans with similar mortgage loans serviced by
other mortgage loan servicers. Such advice may also take the form of
benchmark comparisons that identify and interpret SPS's strengths and
weaknesses relative to similar, unidentified servicers in the industry.
(b) Each party to the Agreement acknowledges that the Master Servicer's
advice is made in the form of recommendations, and that the Master Servicer
does not have the right to direct SPS in performing its duties under this
Agreement. SPS may, after review and analysis of any recommendation of the
Master Servicer accept or reject such advice, in SPS's sole discretion,
subject to the duties and obligations of SPS set forth in this Agreement.
SECTION 13.03. Termination.
The rights and obligations of the Master Servicer under Sections
13.01 and 13.02 of this Agreement shall terminate upon the earlier of (i) the
appointment of a successor Servicer to SPS hereunder for all the SPS Mortgage
Loans or (ii) the receipt by SPS of a rating of "above average" (or its
equivalent) or better as a servicer of subprime mortgage loans by each Rating
Agency that maintains a servicer rating system and a Rating on the
Certificates.
SECTION 13.04. Liability and Indemnification.
Neither the Master Servicer, nor any of its respective directors,
officers, employees, or agents shall be under any liability for any action
taken or for refraining from the taking of any action in good faith pursuant
to Sections 13.01 and 13.02 of this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer
or any such other Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of disregard of obligations and duties
hereunder. The Master Servicer and any director, officer, employee, or agent
thereof shall be entitled to rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder.
SECTION 13.05. Confidentiality.
The Master Servicer agrees that all material, nonpublic
information supplied to it by or on behalf of SPS relating to the SPS
Serviced Mortgage Loans or details of SPS's operations or SPS's proprietary
systems shall be treated confidentially except as otherwise provided by the
terms of this Agreement or as required by law; it being understood that the
provision of any such information by the Master Servicer to any party shall
not cause such information to be considered public for purposes of this
Section 13.05. The Master Servicer shall indemnify SPS against any loss,
liability, claims, charges, damages, fines, penalties, judgments, actions,
suits, costs and such other expenses incurred by SPS as a result of a breach
by the Master Servicer of its obligations under this Section 13.05.
IN WITNESS WHEREOF, the Depositor, the Sellers, the Trust
Administrator, the Master Servicer, the Back-Up Servicer, the Trustee, the
Special Servicer and the Servicers have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the
date first written above.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By:______________________________________
Name:
Title:
DLJ MORTGAGE CAPITAL, INC., as a Seller
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Trust Administrator, as Master
Servicer and as Back-Up Servicer
By:______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as a Servicer
By:______________________________________
Name:
Title:
SELECT PORTFOLIO SERVICING, INC.,
as a Servicer and as Special Servicer
By:______________________________________
Name:
Title:
WASHINGTON MUTUAL BANK,
as a Seller and as a Servicer
By:______________________________________
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of September, 2005, before me, personally appeared
_____________, known to me to be a Vice President of Credit Suisse First
Boston Mortgage Securities Corp., 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]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the __ day of September, 2005, before me, personally appeared
____________, known to me to be a Vice President of DLJ Mortgage Capital,
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]
STATE OF _____________)
: ss.:
COUNTY OF _____________)
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of SPS, the Utah 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 limited partnership
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]
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of Xxxxx Fargo Bank, N.A., the 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 banking 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]
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of Xxxxx Fargo Bank, N.A., the 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 banking 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]
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of Xxxxx Fargo Bank, N.A., the 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 banking 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]
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of Xxxxx Fargo Bank, N.A., the 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 banking 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]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of U.S. Bank National Association, the 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
[NOTARIAL SEAL]
STATE OF _____________)
: ss.:
COUNTY OF _____________)
On the _____ day of September, 2005 before me, a Notary Public in and for
said State, personally appeared ____________________, known to me to be a
__________________ of Washington Mutual Bank, 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 limited
partnership 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 A
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF 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").
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate : Variable
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-A-[__]
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class with respect to
a Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
the Mortgage Loans deposited by Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington Mutual
Bank, as a seller and as a servicer, Xxxxx Fargo Bank, N.A., as trust
administrator, master servicer, servicer and back-up servicer, U.S. Bank
National Association, as trustee, and Select Portfolio Servicing, Inc., as a
servicer and as special servicer. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: ___________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-A-[___]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, of
the Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the
Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
[FOR CLASS 1-A-2, CLASS 1-A-3 AND CLASS 1-A-4 CERTIFICATES ONLY] The
Class 1-A-2, Class 1-A-3 and Class 1-A-4 Certificates are subject to sale by
auction on the Distribution Date in August 2010 pursuant to the terms of the
Auction Administration Agreement.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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
FORM OF CLASS [__]-M CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF 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").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate : Variable
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-M-[__]
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class with respect to
a Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
the Mortgage Loans deposited by Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington Mutual
Bank, as a seller and as a servicer, Xxxxx Fargo Bank, N.A., as trust
administrator, master servicer, servicer and back-up servicer, U.S. Bank
National Association, as trustee, and Select Portfolio Servicing, Inc., as a
servicer and as special servicer. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: __________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-M-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, of
the Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the
Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 C
FORM OF CLASS [__]-B CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF 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").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, AN ERISA-RESTRICTED CERTIFICATE
OR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS
TO THE TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975
OF THE CODE OR A PERSON USING THE ASSETS OF SUCH A PLAN OR ARRANGEMENT OR
(II) IF THE PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN
THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III)
AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. IN THE EVENT THE REPRESENTATIONS REFERRED TO IN THE
PRECEDING SENTENCE ARE NOT FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO
HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF THIS
CERTIFICATE, OR BY ANY BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS
CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT THAT A REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE TO A PLAN OR
ARRANGEMENT OR PERSON USING A PLAN'S OR ARRANGEMENT'S ASSETS IS ATTEMPTED
WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED
ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE
VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest : 100%
CUSIP :
Pass-Through Rate : Variable
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-B-[__]
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class with respect to
a Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________________________________________], is
the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Xxxxx Fargo
Bank, N.A., as trust administrator, master servicer, servicer and back-up
servicer, U.S. Bank National Association, as trustee, and Select Portfolio
Servicing, Inc., as a servicer and as special servicer. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
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 the acceptance hereof assents and by
which such Holder is bound.
[For [__]-B-5, [__]-B-6 and [__]-B-7 only] [No transfer of this
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and such laws, in order to
assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit L and either (A) Exhibit M
1, provided that all of the Certificates of the Class shall be transferred to
one investor or the Depositor otherwise consents to such transfer, or
(B) Exhibit M-2 or (ii) there shall be delivered to the Trust Administrator
at the expense of the transferor an Opinion of Counsel that such transfer may
be made pursuant to an exemption from the Securities Act. The Holder hereof
desiring to affect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Trust Administrator and the Depositor 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.]
Pursuant to Section 6.02(f) of the Agreement, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee shall have
received either (i) a representation letter from the transferee of such
ERISA-Restricted Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, or a person using the assets of any such
plan or arrangement which representation letter shall not be an expense of
the Trustee, the Trust Administrator or the Trust Fund, (ii) if the purchaser
is an insurance company and the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and that the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such ERISA-Restricted Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a person using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trust Administrator to the effect that the purchase or holding of such
Certificate will not result in prohibited transactions under Section 406 of
ERISA and/or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Trust Administrator, the Master Servicer or any other Servicer
to any obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of such parties or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the trustee by the transferee's acceptance of an ERISA-Restricted Certificate
or by any beneficial owner who purchases an interest in this certificate in
book-entry form. In the event that a representation is violated, or any
attempt to transfer an ERISA-Restricted Certificate to a plan or arrangement
or person using a plan's or arrangement's assets is attempted without the
delivery to the Trustee of the Opinion of Counsel described above, the
attempted transfer or acquisition of this certificate shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: __________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ______________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-B-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, of
the Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the
Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 D-1
FORM OF CLASS AR CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF "RESIDUAL INTERESTS" ISSUED BY "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE PROPOSED TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")
OR ARRANGEMENT, OR SECTION 4975 OF THE CODE OR A PERSON USING THE ASSETS OF
SUCH A PLAN OR ARRANGEMENT. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ERISA OR TO THE CODE SHALL BE
VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate : Variable
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class AR
evidencing a percentage interest in the distributions allocable
to the Class AR Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trustee or the Trust Administrator referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that Credit Suisse First Boston LLC, is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Xxxxx Fargo
Bank, N.A., as trust administrator, master servicer, servicer and back-up
servicer, U.S. Bank National Association, as trustee, and Select Portfolio
Servicing, Inc., as a servicer and as special servicer. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
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 the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trust Administrator in New York, New York.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Residual Certificate shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trust Administrator, to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
using the assets of any such plan or arrangement which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the Trustee by the transferee's acceptance of this Residual Certificate or by
any beneficial owner who purchases an interest in this Certificate in
book-entry form. In the event that a representation is violated, or any
attempt to transfer this Residual Certificate to a plan or arrangement or
person using a plan's or arrangement's assets is attempted, the attempted
transfer or acquisition of this Certificate shall be void and of no effect.
Each Holder of this Class AR Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited
to the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class AR Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class AR Certificate may be transferred without
delivery to the Trust Administrator of a transfer affidavit of the initial
owner or the proposed transferee in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this Class
AR Certificate must agree to require a transfer affidavit from any other
person to whom such person attempts to Transfer its Ownership Interest in
this Class AR Certificate as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Class AR
Certificate must agree not to transfer an Ownership Interest in this Class AR
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Class AR Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: __________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ______________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, of
the Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the
Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 D-2
FORM OF CLASS AR-L CERTIFICATE
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").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE PROPOSED TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR ARRANGEMENT, OR SECTION 4975 OF THE CODE OR A PERSON
USING THE ASSETS OF SUCH A PLAN OR ARRANGEMENT. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ERISA OR TO
THE CODE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate : Variable
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class AR-L
evidencing a percentage interest in the distributions allocable
to the Class AR-L Certificates with respect to a Trust Fund
consisting primarily of a pool of fixed rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly
as set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Seller, the Master Servicer, the Servicer, the Trustee or
the Trust Administrator referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or insured by any governmental agency or instrumentality.
This certifies that [__________________________________], is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Xxxxx Fargo
Bank, N.A., as trust administrator, master servicer, servicer and back-up
servicer, U.S. Bank National Association, as trustee, and Select Portfolio
Servicing, Inc., as a servicer and as special servicer. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
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 the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class
AR-L Certificate at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Residual Certificate shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trust Administrator, to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
using the assets of any such plan or arrangement which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the Trustee by the transferee's acceptance of this Residual Certificate or by
any beneficial owner who purchases an interest in this Certificate in
book-entry form. In the event that a representation is violated, or any
attempt to transfer this Residual Certificate to a plan or arrangement or
person using a plan's or arrangement's assets is attempted, the attempted
transfer or acquisition of this Certificate shall be void and of no effect.
Each Holder of this Class AR-L Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class AR-L Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class AR-L Certificate may be
transferred without delivery to the Trust Administrator of a transfer
affidavit of the initial owner or the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring any
Ownership Interest in this Class AR-L Certificate must agree to require a
transfer affidavit from any other person to whom such person attempts to
Transfer its Ownership Interest in this Class AR-L Certificate as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class AR-L Certificate must agree not to transfer an
Ownership Interest in this Class AR-L Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class AR-L
Certificate in violation of such restrictions will be absolutely null and
void and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: __________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class AR-L
This Certificate is one of a duly authorized issue of
Certificates designated as Credit Suisse First Boston Mortgage Securities
Corp., Adjustable Rate CSFB Mortgage-Backed Pass-Through Certificates, Series
2005-10, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest
in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month, or, if such 25th day is not a Business
Day, the Business Day immediately following such 25th day (the "Distribution
Date"), commencing on the first Distribution Date specified on the face
hereof, to the Person in whose name this Certificate is registered at the
close of business on the applicable Record Date in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement. The Record Date applicable to each Distribution Date is (1) with
respect to all Certificates other than the LIBOR Certificates held in
Book-Entry Form on such Distribution Date, the close of business on the last
day of the calendar month preceding the month in which such Distribution Date
occurs and (2) with respect to the LIBOR Certificates held in Book-Entry Form
on such Distribution Date, the close of business on the Business Day
immediately preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicer, the Seller, the Trustee and the Trust Administrator with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. 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 exchange therefor 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 is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trust Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Depositor, the Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, the
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicer, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 E
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF 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").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR
ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE
OR A PERSON USING THE ASSETS OF SUCH A PLAN OR ARRANGEMENT, OR (II) IF THE
PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF
AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN
THE EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE
TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR ARRANGEMENT OR PERSON ACTING ON BEHALF
OF A PLAN OR USING A PLAN'S OR ARRANGEMENT'S ASSETS IS ATTEMPTED WITHOUT THE
DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED ABOVE, THE
ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE VOID AND OF NO
EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No. : P-1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Percentage Interest : ____%
CUSIP :
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10,
Class P
evidencing a 100% Percentage Interest in the distributions
allocable to the Class P Certificates with respect to a Trust
Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _____________________________, is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Xxxxx Fargo
Bank, N.A., as trust administrator, master servicer, servicer and back-up
servicer, U.S. Bank National Association, as trustee, and Select Portfolio
Servicing, Inc., as a servicer and as special servicer. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
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 the acceptance hereof assents and by
which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is
to be made in reliance upon an exemption from the Securities Act and such
laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit L and either (A) Exhibit
M-1, provided that all of the Certificates of the Class shall be transferred
to one investor or the Depositor otherwise consents to such transfer, or (B)
Exhibit M-2 or (ii) there shall be delivered to the Trust Administrator at
the expense of the transferor an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Trust Administrator and the Depositor 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.
Pursuant to Section 6.02(f) of the Agreement, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee shall have
received either (i) a representation letter from the transferee of such
ERISA-Restricted Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, or a person using the assets of any such
plan or arrangement which representation letter shall not be an expense of
the Trustee, the Trust Administrator or the Trust Fund, (ii) if the purchaser
is an insurance company and the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and that the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such ERISA-Restricted Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a person using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trust Administrator to the effect that the purchase or holding of such
Certificate will not result in prohibited transactions under Section 406 of
ERISA and/or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Trust Administrator, the Master Servicer or any other Servicer
to any obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of such parties or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the Trustee by the transferee's acceptance of an ERISA-Restricted Certificate
or by any beneficial owner who purchases an interest in this certificate in
book-entry form. In the event that a representation is violated, or any
attempt to transfer an ERISA-Restricted Certificate to a plan or arrangement
or person using a plan's or arrangement's assets is attempted without the
delivery to the Trustee of the Opinion of Counsel described above, the
attempted transfer or acquisition of this certificate shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth following the signature page hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: _______________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10,
Class P
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage Trust 2005-10, of the Series specified on the face
hereof (herein collectively called the "Certificates"), and representing a
beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 F
FORM OF CLASS [__]-X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
OWNERSHIP OF 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").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR
ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE
OR A PERSON USING THE ASSETS OF SUCH A PLAN OR ARRANGEMENT, OR (II) IF THE
PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF
AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN
THE EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE
TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR ARRANGEMENT OR PERSON ACTING ON BEHALF
OF A PLAN OR USING A PLAN'S OR ARRANGEMENT'S ASSETS IS ATTEMPTED WITHOUT THE
DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED ABOVE, THE
ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE VOID AND OF NO
EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : September 26, 2005
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest : 100%
CUSIP :
Pass-Through Rate : N/A
Maturity Date : November 2035
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-X
evidencing a 100% Percentage Interest in the distributions
allocable to the Class [__]-X Certificates with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________________________________________], is
the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Xxxxx Fargo
Bank, N.A., as trust administrator, master servicer, servicer and back-up
servicer, U.S. Bank National Association, as trustee, and Select Portfolio
Servicing, Inc., as a servicer and as special servicer. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
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 the acceptance hereof assents and by
which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is
to be made in reliance upon an exemption from the Securities Act and such
laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit L and either (A) Exhibit M
1, provided that all of the Certificates of the Class shall be transferred to
one investor or the Depositor otherwise consents to such transfer, or (B)
Exhibit M 2 or (ii) there shall be delivered to the Trust Administrator at
the expense of the transferor an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Trust Administrator and the Depositor 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.
Pursuant to Section 6.02(f) of the Agreement, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee shall have
received either (i) a representation letter from the transferee of such
ERISA-Restricted Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, or a person using the assets of any such
plan or arrangement which representation letter shall not be an expense of
the Trustee, the Trust Administrator or the Trust Fund, (ii) if the purchaser
is an insurance company and the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and that the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such ERISA-Restricted Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a person using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trust Administrator to the effect that the purchase or holding of such
Certificate will not result in prohibited transactions under Section 406 of
ERISA and/or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Trust Administrator, the Master Servicer or any other Servicer
to any obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of such parties or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the Trustee by the transferee's acceptance of an ERISA-Restricted Certificate
or by any beneficial owner who purchases an interest in this certificate in
book-entry form. In the event that a representation is violated, or any
attempt to transfer an ERISA-Restricted Certificate to a plan or arrangement
or person using a plan's or arrangement's assets is attempted without the
delivery to the Trustee of the Opinion of Counsel described above, the
attempted transfer or acquisition of this certificate shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
On any Distribution Date on which the Stated Principal Balance of
Mortgage Loans in such Loan Groups as are specified in the Agreement are less
than those percentages set forth in the Agreement, all remaining Mortgage
Loans in such Loan Groups and all property acquired in respect of such
Mortgage Loans may be purchased as provided in the Agreement. In the event
that no such purchase occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity 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 in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement or (ii) the Distribution Date following the third anniversary of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the related Cut-off Date. Any term used herein that is
defined in the Agreement shall have the meaning assigned in the Agreement,
and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: __________________
XXXXX FARGO BANK, N.A.
as Trust Administrator
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10
Class [__]-X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-10, of
the Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the
Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust
Administrator is 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 thereby, and the
rights, duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the last day of the calendar
month preceding the month in which such Distribution Date occurs and (2) with
respect to the LIBOR Certificates held in Book-Entry Form on such
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trust Administrator in writing
at least five Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first
class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicers, the Special Servicer, the Seller, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. 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
exchange therefor 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 is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or
agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trust Administrator and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest in the Trust Fund will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, the Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, the Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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
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 G
[RESERVED]
EXHIBIT H
FORM OF SERVICER INFORMATION
The following information will be e-mailed to the Master Servicer by each
Servicer and to the Trust Administrator by the Master Servicer:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Deficient Valuation,
Debt Reduction)
Xxxxx Fargo Bank NA
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Client Manager, CSFB ARMT 2005-10
Phone No. 000-000-0000
Fax No. 000-000-0000
[name]
Xxxxx Fargo Bank, N.A.
[address]
Phone No. [________]
Fax No. [________]
[email]
XXXXX FARGO BANK, N.A.
Form 332
------------------------------------------------------------------------------
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss
(or gain) as a result of a Mortgage Loan having been foreclosed and
Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original
together with evidence of conveyance of title and appropriate supporting
documentation to the Master Servicer with the Monthly Accounting Reports
which supports the Mortgage Loan's removal from the Mortgage Loan Activity
Report. The Servicer will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to
the Master Servicer no later than the date on which statements are due to the
Master Servicer under Section 4.02 of this Agreement (the "Statement Date")
in the month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if
such Statement Date is not at least 30 days after receipt of final
liquidation proceeds and supporting documentation relating to such liquidated
Mortgage Loan, then the form will be submitted on the first Statement Date
occurring after the 30th day following receipt of final liquidation proceeds
and supporting documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
11-17. Complete as necessary. All line entries must be supported by
copies of the appropriate claims forms, statements, payment checks,
etc. to document the credit. If the Mortgage Loan is subject to a
Bankruptcy Deficiency, the difference between the Unpaid Principal
Balance of the Note prior to the Bankruptcy Deficiency and the Unpaid
Principal Balance as reduced by the Bankruptcy Deficiency should be
input on line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
------------------------------------------------------------------------------
XXXXX FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
------------------- ------------------ -------------------
Service Loan No. Servicer Name Servicer Address
------------------- ------------------ -------------------
XXXXX FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of $ _______________(1)
Mortgage Loan
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
$ _________________
_________________________________________
__________________
_________________________________________
__________________
_________________________________________
__________________
_________________________________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
___________________
_________________________________________
___________________
_________________________________________
Total Credits $________________(18)
Total Realized Loss (or Amount of Gain) $________________(19)
I-2
I-1
EXHIBIT I-1
FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
[_________________, 200_]
U.S. Bank National Association
as Trustee for the
Adjustable Rate Mortgage Trust 2005-10
Corporate Trust Services/Structured Finance
60 Xxxxxxxxxx Avenue, EP MN WS3D
Xx. Xxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.,
as Trust Administrator and Master Servicer for the
Adjustable Rate Mortgage Trust 2005-10
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Re: Custodial Agreement, dated as of September 1, 2005, among U.S.
Bank National Association, as Trustee, Xxxxx Fargo Bank, N.A., as
Trust Administrator, and [_______________], as Custodian.
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies as to each Mortgage Loan in the Mortgage Loan Schedule that
(i) it has received the original Mortgage Note and Assignment of Mortgage
with respect to each Mortgage Loan identified on the Mortgage Loan Schedule
attached hereto and (ii) such Mortgage Note has been reviewed by it and
appears regular on its face and relates to such Mortgage Loan. The Custodian
makes no representations as to (i) the validity, legality, enforceability,
sufficiency, due authorization or genuineness of any of the documents
contained in each Custodial File or of any of the Mortgage Loans or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian hereby confirms that it is holding each such
Mortgage Note, Assignment of Mortgage and Assignment of Note as agent and
bailee of, and custodian for the exclusive use and benefit, and subject to
the sole direction, of the Trustee pursuant to the terms and conditions of
the Custodial Agreement.
This Trust Receipt and Initial Certification is not divisible or
negotiable.
The Custodian will accept and act on instructions with respect to
the Mortgage Loans subject hereto upon surrender of this Trust Receipt and
Initial Certification at its office at [CUSTODIAN ADDRESS], Attention:
Document Custodian.
Capitalized terms used herein shall have the meaning ascribed to
them in the Custodial Agreement.
[_______________________________],
as Custodian
By: ________________________________
Name:
Title:
EXHIBIT I-2
FORM OF TRUST RECEIPT AND SUBSEQUENT CERTIFICATION
[_________________, 200_]
U.S. Bank National Association
as Trustee for the
Adjustable Rate Mortgage Trust 2005-10
Corporate Trust Services/Structured Finance
60 Xxxxxxxxxx Avenue, EP MN WS3D
Xx. Xxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.,
as Trust Administrator and Master Servicer for the
Adjustable Rate Mortgage Trust 2005-10
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Re: Custodial Agreement, dated as of September 1, 2005, among U.S.
Bank National Association, as Trustee, Xxxxx Fargo Bank, N.A., as
Trust Administrator, and [_______________], as Custodian.
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies as to each Subsequent Mortgage Loan that (i) it has received
the original Mortgage Note and Assignment of Mortgage with respect to each
such Subsequent Mortgage Loan identified on the Mortgage Loan Schedule
attached hereto and (ii) such Mortgage Note has been reviewed by it and
appears regular on its face and relates to such Subsequent Mortgage Loan.
The Custodian makes no representations as to (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any of the Subsequent
Mortgage Loans or (ii) the collectability, insurability, effectiveness or
suitability of any such Subsequent Mortgage Loan.
The Custodian hereby confirms that it is holding each such
Mortgage Note, Assignment of Mortgage and Assignment of Note as agent and
bailee of, and custodian for the exclusive use and benefit, and subject to
the sole direction, of the Trustee pursuant to the terms and conditions of
the Custodial Agreement.
This Trust Receipt and Subsequent Certification is not divisible
or negotiable.
The Custodian will accept and act on instructions with respect to
the Subsequent Mortgage Loans subject hereto upon surrender of this Trust
Receipt and Subsequent Certification at its office at [CUSTODIAN ADDRESS],
Attention: Document Custodian.
Capitalized terms used herein shall have the meaning ascribed to
them in the Custodial Agreement.
[_______________________________],
as Custodian
By:________________________________
Name:
Title:
EXHIBIT J
FORM OF TRUST RECEIPT AND FINAL CERTIFICATION
[date]
U.S. Bank National Association
as Trustee for the
Adjustable Rate Mortgage Trust 2005-10
Corporate Trust Services/Structured Finance
60 Xxxxxxxxxx Avenue, EP MN WS3D
Xx. Xxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.,
as Trust Administrator and Master Servicer for the
Adjustable Rate Mortgage Trust 2005-10
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Re: Custodial Agreement, dated as of September 1, 2005, among U.S.
Bank National Association, as Trustee, Xxxxx Fargo Bank, N.A., as
Trust Administrator, and [____________________], as Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section [5][6] of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies that as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
listed on the attachment hereto) it has reviewed the Custodial Files and has
determined that (i) all documents required to be delivered to it pursuant to
Sections 2(i)-(ix) of the Custodial Agreement are in its possession; (ii)
such documents have been reviewed by it and appear regular on their face and
related to such Mortgage Loan; (iii) all Assignments of Mortgage or
intervening assignments of mortgage, as applicable, have been submitted for
recording in the jurisdictions in which recording is necessary; and (iv) each
Mortgage Note has been endorsed as provided in Section 2(ii) of the Custodial
Agreement and each Mortgage has been assigned in accordance with
Section 2(vi) of the Custodial Agreement. The Custodian makes no
representations as to (i) the validity, legality, enforceability,
sufficiency, due authorization or genuineness of any of the documents
contained in each Custodial File or of any of the Mortgage Loans or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian hereby confirms that it is holding each such
Custodial File as agent and bailee of, and custodian for the exclusive use
and benefit, and subject to the sole direction, of Trustee pursuant to the
terms and conditions of the Custodial Agreement.
This Trust Receipt and Final Certification is not divisible or
negotiable.
The Custodian will accept and act on instructions with respect to
the Mortgage Loans subject hereto upon surrender of this Trust Receipt and
Initial Certification at its office at [CUSTODIAN ADDRESS], Attention:
Document Custodian.
Capitalized terms used herein shall have the meaning ascribed to
them in the Custodial Agreement.
[_______________________________],
as Custodian
By: ________________________________
Name:
Title:
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: U.S. Bank National Association
In connection with the administration of the Mortgage Loans held
by you as Trustee under the Pooling and Servicing Agreement, dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement"), the
undersigned hereby requests a release of the Mortgage File held by you as
Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.(The Servicer hereby certifies that
the Purchase Price has been credited to the Certificate Account
pursuant to the Pooling and Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has
been paid in full or repurchased (in which case the Mortgage File will be
retained by us permanently) when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By: ________________________________
Name:
Title:
L-1
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class AR Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
________________________________
Print Name of Transferor
By: ________________________________
Authorized Officer
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b)
we are an "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that
we are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) either (i) we are not an
employee benefit plan or arrangement that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we using the assets of any
such plan or arrangement, (ii) we are providing an Opinion of Counsel which
establishes to the reasonable satisfaction of the Trust Administrator that
the purchase and holding of ERISA-Restricted Certificates by, on behalf of or
with "plan assets" of such plan or arrangement will not result in non-exempt
prohibited transactions under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Depositor, the Trustee, the Trust
Administrator, the Master Servicer or any other Servicer to any obligation in
addition to those undertaken in this Agreement or (iii) if, in the case of
ERISA-Restricted Certificates that have been the subject of an
ERISA-Qualifying Underwriting, we are an insurance company, we are purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee of
such Certificate has executed and delivered to you a certificate to
substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth
in the Pooling and Servicing Agreement.
Very truly yours,
______________________________________
Print Name of Transferor
By: ______________________________________
Authorized Officer
EXHIBIT M-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that
we are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) either (i) we are not an
employee benefit plan or arrangement that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we using the assets of any
such plan or arrangement, (ii) we are providing an Opinion of Counsel which
establishes to the reasonable satisfaction of the Trust Administrator that
the purchase and holding of ERISA-Restricted Certificates by, on behalf of or
with "plan assets" of such plan will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not subject the Depositor, the Trustee, the Trust Administrator, the Master
Servicer or any other Servicer to any obligation in addition to those
undertaken in this Agreement or (iii) if, in the case of an ERISA-Restricted
Certificates that have been the subject of an ERISA-Qualifying Underwriting,
we are an insurance company, we are purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and our purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting on
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any
other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates 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 Certificates
under the Act or that would render the disposition of the Certificates a
violation of Section 5 of the Act or require registration pursuant thereto,
nor will act, nor has authorized or will authorize any person to act, in such
manner with respect to the Certificates, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Act
("Rule 144A") and have completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the sale
to us is being made in reliance on Rule 144A, and (i) we are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or
transferred only (A) 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 (B) pursuant to
another exemption from registration under the Act.
Very truly yours,
______________________________________
Print Name of Transferor
By: ______________________________________
Authorized Officer
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class [AR/AR-L] Certificates (the
"Class [AR/AR-L] Certificates")), 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 and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii) will endeavor to remain other than a disqualified organization
for so long as it retains its ownership interest in the Class [AR/AR-L]
Certificates, and (iii) is acquiring the Class [AR/AR-L] Certificates for its
own account. A "Permitted Transferee" is any person other than a
"disqualified organization." (For this purpose, a "disqualified
organization" means 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 [AR/AR-L] Certificates to disqualified
organizations under the Code; (ii) that such tax would be on the transferor,
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii)
that the person 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 a Permitted Transferee and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv)
that the Class [AR/AR-L] 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, if a
significant purpose of the transfer was to enable the transferor 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 [AR/AR-L] Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted Transferee
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 [AR/AR-L] 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 [AR/AR-L] Certificates and the provisions of
Section 6.02 of the Pooling and Servicing Agreement under which the Class
[AR/AR-L] 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 [AR/AR-L]
Certificates will only be owned, directly or indirectly, by an Owner that is
a Permitted Transferee.
8. That the Owner's Taxpayer Identification Number is
________________.
9. That 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, any State thereof or the District of
Columbia, 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.
10. That no purpose of the Owner relating to the purchase of
the Class [AR/AR-L] Certificate by the Owner is or will be to impede the
assessment or collection of tax.
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.
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 Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the
Class [AR/AR-L] Certificate by the Owner will be to impede the assessment or
collection of tax.
14. The Owner hereby agrees to cooperate with the Trustee and
to take any action required of it by the Code or Treasury regulations
thereunder (whether now or hereafter promulgated) in order to create or
maintain the REMIC status of the Trust Fund.
15. That the Owner 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 (the "Code") (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.
16. The Owner hereby agrees that it will not take any action
that could endanger the REMIC status of the Trust Fund or result in the
imposition of tax on the Trust Fund unless counsel for, or acceptable to, the
Trustee has provided an opinion that such action will not result in the loss
of such REMIC status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other
financial information requested by the transferor in connection with the
transfer of the Residual Certificates to permit the transferor to assess the
financial capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By: ______________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
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 Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and sworn before me this _____ day of _______________________.
______________________________________
NOTARY PUBLIC
COUNTY OF _________________________________
STATE OF __________________________________
My Commission expires the _____ day of
__________________, 20____.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage Backed Pass Through
Certificates, Series 200_ ___, Class AR (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
dated as of September 1, 2005, among Credit Suisse First Boston Mortgage
Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller,
Washington Mutual Bank, as a seller and as a servicer, Select Portfolio
Servicing, Inc., as a servicer and as special servicer, U.S. Bank National
Association, as trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master
servicer, back-up servicer and trust administrator (the "Pooling and
Servicing Agreement"). All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Seller hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the
Certificate by the Seller to the Purchaser is or will be to enable the Seller
to impede the assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit N. The Seller does not know or
believe that any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed
Transferee is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would
be unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due,
and found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax
liabilities in excess of any cash flows generated by the interest, and (ii)
intends to pay taxes associated with its holding of the Certificate as they
become due.
Very truly yours,
[SELLER]
By: ______________________________________
Name:
Title:
EXHIBIT P
FORM OF SPS MORTGAGE LOANS REPORT
DATA AND FORMAT TO BE PROVIDED BY SPS TO THE MASTER SERVICER
(in Excel format)
ALL SPS MORTGAGE LOANS
FIELD FORMAT FIELD
Name* Text
Lien Position * Text/Number
FICO Score* Number
Original Occupancy* Text
Documentation* Text
Purpose* Text
Original Loan Amount* Number
Original Appraisal Value* Number
Original LTV* Number
Original P&I* Number
Original Interest Rate* Number
First Payment Date* MM/DD/YY
Origination Date* MM/DD/YY
Originator* Text
Loan Term* Number
Product Type (adjustable rate or fixed rate)* Text
Property Type* Text
Street Address* Text
City* Text
Zip Code* Text
State* Text
MI Certificate Number* Number
Prepayment Flag Text
Prepayment Expiration Date MM/DD/YY
Loan Number Text
Deal Identifier by Loan Text
Current Loan Amount Number
Current LTV Number
Current Interest Rate Number
Last Interest Payment Date MM/DD/YY
Current P&I Payment Amount Number
Paid Off Code Text
Scheduled Balance Number
Calculation of Retained Yield by Loan Number (if applicable Number
to the transaction)
Reporting of Delinquency Status on Defaulted Mortgage Loans Text
Current Market Value Number
Date of Market Value MM/DD/YY
As-is Value Number
Repaired Value Number
Type of Valuation Text
Foreclosure Flag Text
Bankruptcy Flag Text
Date NOD sent to MI company MM/DD/YY
Foreclosure Start Date (Referral Date) MM/DD/YY
Scheduled Foreclosure Sale Date MM/DD/YY
Foreclosure Actual Sale Date MM/DD/YY
Actual Notice of Intent Date MM/DD/YY
Actual First Legal Date MM/DD/YY
Bankruptcy Chapter Number
Actual Bankruptcy Start Date MM/DD/YY
Actual Payment Plan Start and End Dates MM/DD/YY
List Date MM/DD/YY
List Price Number
Vacancy/Occupancy Status Text
Actual Eviction Start Date MM/DD/YY
Actual Eviction Completion Date MM/DD/YY
Actual REO Start Date MM/DD/YY
Sales Price Number
Actual Closing Date MM/DD/YY
Net Sales Proceeds Number
Mortgage Insurance Claim Filing Date MM/DD/YY
Mortgage Insurance Proceeds Received Number
Date Mortgage Insurance Proceeds Received MM/DD/YY
Collection History
*All amounts will be itemized, and to the extent not itemized, this form will
be accompanied by documentation supporting all amounts claimed on this form.
EXHIBIT Q
FORM OF FORECLOSURE SETTLEMENT STATEMENT
REMIC # Ending Interest
Rate:
Original Amount of Loan: Fixed or
Adjustable:
UPB Accrued Int to frcl sale:
Advanced Delinquent Interest:
Date Borrower Paid To: / /
Borrower's Name:
Property Address:
MSP Bank/Category
Note Date: / /
Date of REO: / /
Disposition Date: / /
Amount Date of Valuation Type of Valuation
Market Value AS IS: / /
Repaired
Supplemental Value AS IS: / /
Repaired
REO BPO Value: / /
List Price:
Sales Price:
Proceeds Expenses*
List Price: Servicing
Advances:
Sales Price: 0.00 Payee 70R01
Acquisition:
Broker's Payee 75R60 REO:
Commission:
Bonus Commission: Payee 75R49
Foreclosure:
Lien Purchase/Paid Payee 75R36 Escrow:
Off:
Seller Closing Payee 75R52
Costs: Bankruptcy:
Repair Costs: Discrepancy Amount:
Seller Concessions: Servicing Advance 0.00
Total:
Other Closing Advances Applied After
Costs: Liquidation:
Prior Additional Advances:
Net Proceeds: 0.00 Escrow Advance:
Interest on Advances:
Escrow Balance: Other Advances:
Suspense Balance: Servicing Advance Holdbacks:
Restricted Escrow: Property
Inspection:
Rental Income BPO:
Received:
Insurance Settlement Lender Placed
Received: Insurance:
Other: Utilities:
REO Repair Costs:
Total Liquidation Proceeds: 0.00 Foreclosure Fees:
Total Liquidation Expenses: 0.00 Bankruptcy:
Net Liquidation Proceeds: 0.00 Eviction Costs:
Loan Principal Balance: Transfer Tax:
Realized Gain/Loss Amount: 0.00 Reconveyance Fees:
Additional Proceeds Applied: Demand Fee:
Prior Additional Proceeds: Total Holdbacks: 0.00
Loss Severity: #DIV/0! Other Fees (Including
Fee Code B):
Notes: UPB Accrued Interest to 0.00
XXX:
Advanced Delinquent 0.00
Interest:
Stopped Delinquent
Interest:
Deferred Interest:
Additional Interest:
Total Liquidation 0.00
Expenses:
EXHIBIT R
FORM OF SUBSEQUENT TRANSFER AGREEMENT
THIS SUBSEQUENT TRANSFER AGREEMENT, dated as of [_________], 2005
(this "Subsequent Transfer Agreement"), is entered into by and among CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, as
depositor (the "Depositor"), DLJ MORTGAGE CAPITAL, INC., a Delaware
corporation, in its capacity as seller under the Pooling and Servicing
Agreement referred to below (the "Seller"), U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee") and XXXXX FARGO
BANK, N.A., a national banking association, in its capacity as trust
administrator (the "Trust Administrator") and in its capacity as master
servicer (the "Master Servicer").
WHEREAS, the parties hereto are also among the parties to the
Pooling and Servicing Agreement dated as of September 1, 2005, among Credit
Suisse First Boston Mortgage Securities Corp., as depositor, DLJ Mortgage
Capital, Inc., as a seller, Washington Mutual Bank, as a seller and as a
servicer, Select Portfolio Servicing, Inc., as a servicer and as special
servicer, U.S. Bank National Association, as trustee, and Xxxxx Fargo Bank,
N.A., as a servicer, master servicer, back-up servicer and trust
administrator (the "Pooling and Servicing Agreement"), in relation to the
Credit Suisse First Boston Mortgage Securities Corp., Adjustable Rate
Mortgage Trust 2005-10, Adjustable Rate Mortgage-Backed Pass-Through
Certificates, Series 2005-10;
WHEREAS, Section 2.01(f) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Subsequent Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(i) The "Subsequent Cut-off Date" and "Subsequent Transfer
Date" with respect to this Subsequent Transfer Agreement shall be [______] 1,
2005 and [____________], 2005, respectively.
(ii) The "Aggregate Subsequent Purchase Amount" with respect to
this Subsequent Transfer Agreement shall be $[__________], provided, however,
that such amount shall not exceed the amount on deposit in the Prefunding
Account.
(iii) The Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date shall satisfy the pool characteristics for the Trust Fund
identified in Section 2.01(f) of the Pooling and Servicing Agreement.
(iv) In case any provision of this Subsequent Transfer Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby.
(v) In the event of any conflict between the provisions of this
Subsequent Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail. Capitalized
terms used herein and not otherwise defined have the meanings in the Pooling
and Servicing Agreement.
(vi) The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Depositor, without recourse, all right title and
interest in the Subsequent Mortgage Loans identified in Schedule A, including
all interest and principal due on or with respect to such Subsequent Mortgage
Loans on or after the Subsequent Cut-off Date and all interest and principal
payments on such Subsequent Mortgage Loans received prior to the Subsequent
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including principal and interest due on such Subsequent
Mortgage Loans prior to the Subsequent Cut-off Date, any insurance policies
in respect of such Subsequent Mortgage Loans and all proceeds of any of the
foregoing.
(vii) The Depositor hereby sells, transfers, assigns, sets over
and otherwise conveys to the Trustee in trust for the benefit of the
Certificateholders, without recourse, all right title and interest in the
Subsequent Mortgage Loans identified in Schedule A, including all interest
and principal due on or with respect to such Subsequent Mortgage Loans on or
after the Subsequent Cut-off Date and all interest and principal payments on
such Subsequent Mortgage Loans received prior to the Subsequent Cut-off Date
in respect of installments of interest and principal due thereafter, but not
including principal and interest due on such Subsequent Mortgage Loans prior
to the Subsequent Cut-off Date, any insurance policies in respect of such
Subsequent Mortgage Loans and all proceeds of any of the foregoing.
(viii) This Subsequent Transfer Agreement shall be governed
by, and shall be construed and enforced in accordance with the laws of the
State of New York.
(ix) The Subsequent Transfer Agreement may be executed in one or
more counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties to this Subsequent Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: ________________________________
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.,
as Seller
By: ________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By: ________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Trust Administrator and Master
Servicer
By: ________________________________
Name:
Title:
EXHIBIT S
FORM OF MONTHLY STATEMENT TO CERTIFICATEHOLDERS
(i) With respect to each Class of Certificates which are not Notional
Amount Certificates and, unless otherwise stated, the related
Distribution Date,
(a) the Initial Class Principal Balance of such Class as of the
Cut-off Date;
(b) the Class Principal Balance of such Class before giving effect to
the distribution of principal and interest;
(c) the amount of the related distribution on such Class allocable to
interest;
(d) the amount of the related distribution on such Class allocable to
principal;
(e) the sum of the principal and interest payable to such Class;
(f) the Realized Loss allocable to such Class;
(g) the Class Unpaid Interest Amount allocable to such Class;
(h) the Class Principal Balance of such Class after giving effect to
the distribution of principal and interest;
(i) the Pass-Through Rate for such Class;
(j) any Basis Risk Shortfall allocable to such Class, if such amount
is greater than zero;
(k) any shortfall in principal allocable to such Class, if such
amount is greater than zero;
(ii) with respect to each Class of Certificates which are Notional Amount
Certificates and, unless otherwise stated, the related Distribution
Date,
(a) the Notional Amount of such Class as of the Cut-off Date;
(b) the Notional Amount of such Class before giving effect to the
distribution of interest;
(c) the amount of the related distribution on such Class allocable to
interest;
(d) the amount of the related distribution on such Class allocable to
principal;
(e) the sum of the principal and interest payable to such class;
(f) the Realized Loss allocable to such Class;
(g) the Class Unpaid Interest Amount allocable to such Class;
(h) the Notional Amount of such Class after giving effect to the
distribution of interest;
(i) the Pass-Through Rate for such Class;
(j) any Basis Risk Shortfall allocable to such Class, if such amount
is greater than zero;
(iii) with respect to a $1000 factor of the Initial Class Principal Balance
of each Class of Certificates which are not Notional Amount
Certificates and the related Distribution Date,
(a) the CUSIP number assigned to such Class;
(b) the Class Principal Balance of such Class factor prior to giving
effect to the distribution of principal and interest;
(c) the amount of the related distribution allocable to interest on
such Class factor;
(d) the amount of the related distribution allocable to principal on
such Class factor;
(e) the sum of the principal and interest payable to such Class
factor;
(f) the Class Principal Balance of such Class factor after giving
effect to the distribution of principal and interest;
(iv) with respect to a $1000 factor of the Initial Class Principal Balance
of each Class of Certificates which are Notional Amount Certificates
and the related Distribution Date,
(a) the CUSIP number assigned to such Class;
(b) the Notional Amount of such Class factor prior to giving effect
to the distribution of interest;
(c) the amount of the related distribution allocable to interest on
such Class factor;
(d) the amount of the related distribution allocable to principal on
such Class factor;
(e) the sum of the principal and interest payable to such Class
factor;
(f) the Notional Amount of such Class factor after giving effect to
the distribution of interest;
(v) with respect to each Loan Group, in the aggregate, and, unless
otherwise stated, the related Distribution Date,
(a) the Scheduled Payment of principal for such Loan Group;
(b) the amount of Principal Prepayments allocable to such Loan Group;
(c) the amount of principal allocable to such Loan Group as a result
of repurchased Mortgage Loans in such Loan Group;
(d) the Substitution Adjustment Amount allocable to such Loan Group;
(e) the amount of Net Liquidation Proceeds allocable to such Loan
Group;
(f) the amount of Insurance Proceeds allocable to such Loan Group;
(g) the amount of any other distributions allocable to principal for
such Loan Group;
(h) the number of Mortgage Loans in such Loan Group as of the first
day of the related Collection Period;
(i) the aggregate Stated Principal Balance of the Mortgage Loans in
such Loan Group as of the first day of the related Collection
Period;
(j) the number of Mortgage Loans in such Loan Group as of the last
day of the related Collection Period;
(k) the aggregate Stated Principal Balance of the Mortgage Loans in
such Loan Group as of the last day of the related Collection
Period;
(l) the Master Servicing Fee, by Loan Group;
(m) the sum of the Servicing Fee, the Mortgage Guaranty Insurance
Policy fees, if applicable and the [RMIC/TGIC/MGIC] PMI fees, if
applicable, for such Loan Group;
(n) the Trust Administrator Fee applicable to such Loan Group;
(o) the amount of current Advances allocable to such Loan Group;
(p) the amount of outstanding Advances allocable to such Loan Group;
(q) the number and aggregate principal amounts of Mortgage Loans
delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 days
or more, for such Loan Group, including delinquent bankrupt
Mortgage Loans but excluding foreclosure and REO Mortgage Loans;
(r) the number and aggregate principal amounts of Mortgage Loans that
are currently in bankruptcy, but not delinquent, for such Loan
Group;
(s) the number and aggregate principal amounts of Mortgage Loans that
are in foreclosure for such Loan Group;
(t) the Rolling Three Month Delinquency Rate or Rolling Six Month
Delinquency Rate for such Loan Group;
(u) the number and aggregate principal amount of any REO properties
as of the close of business on the Determination Date preceding
such Distribution Date for such Loan Group;
(v) current Realized Losses allocable to such Loan Group;
(w) cumulative Realized Losses allocable to such Loan Group;
(x) the weighted average term to maturity of the Mortgage Loans in
such Loan Group as of the close of business on the last day of
the calendar month preceding the related Distribution Date;
(y) the number and principal amount of claims submitted under the
Mortgage Guaranty Insurance Policy, as applicable;
(z) the number and principal amount of claims paid under the
[RMIC/TGIC/MGIC] PMI Policy, as applicable;
(aa) the number of Mortgage Loans in such Loan Group that have
Assigned Prepayment Premiums and for which prepayments were made
during the related Collection Period, as applicable;
(bb) the aggregate principal balance of Mortgage Loans in such Loan
Group that have Assigned Prepayment Premiums and for which
prepayments were made during the related Collection Period, as
applicable;
(cc) the aggregate amount of Assigned Prepayment Premiums collected
for such Loan Group during the related Collection Period, as
applicable;
(dd) current Realized Losses allocated to each Mortgage Loan in such
Loan Group that has previously been allocated a Realized Loss;
(ee) cumulative Realized Losses allocated to each Mortgage Loan in
such Loan Group that has previously been allocated a Realized
Loss;
(ff) current Recoveries allocable to such Loan Group;
(gg) cumulative Recoveries allocable to such Loan Group;
(hh) current aggregate Stated Principal Balance of Qualified
Substitute Mortgage Loans substituted for Deleted Mortgage Loans
in such Loan Group;
(ii) cumulative aggregate Stated Principal Balance of Qualified
Substitute Mortgage Loans substituted for Deleted Mortgage Loans
in such Loan Group;
(jj) with respect to all of the Mortgage Loans, in the aggregate, and,
unless otherwise stated, the related Distribution Date, for each
Servicer that is servicing any of such Mortgage Loans, the
aggregate Stated Principal Balance of Mortgage Loans being
serviced by such Servicer as of such Distribution Date; and
(kk) [reserved];
(vii) with respect to each overcollateralized Group of Certificates and,
unless otherwise stated, the related Distribution Date,
(a) the Targeted Overcollateralization Amount for such Group;
(b) the Overcollateralization Amount for such Group;
(c) the Overcollateralization Deficiency for such Group;
(d) the Overcollateralization Release Amount for such Group;
(e) the Monthly Excess Interest for such Group;
(f) the amount of any payment to the [Class __-X] Certificates
related to such Group;
(g) if applicable, the Excess Interest Amount from an unrelated
Group of Certificates that provides additional credit enhancement
to the related overcollateralized Group of Certificates.
EXHIBIT T
FORM OF DEPOSITOR CERTIFICATION
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series
2005-10
I, __________________________, certify that:
1.....I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution and servicing reports filed in
respect of periods included in the year covered by this annual report, of
Adjustable Rate Mortgage Trust 2005-10, Adjustable Rate Mortgage-Backed
Pass-Through Certificates, Series 2005-10 (the "Trust");
2.....Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading as
of the last day of the period covered by this annual report;
3.....Based on my knowledge, the distribution information
required to be prepared by the Trust Administrator based upon the servicing
information required to be provided by each Servicer and the Master Servicer
under the Pooling and Servicing Agreement is included in these reports;
4.....Based on my knowledge and upon the annual compliance
statements included in the report and required to be delivered to the Trust
Administrator in accordance with the terms of the Pooling and Servicing
Agreement and based upon the review required under the Pooling and Servicing
Agreement, and except as disclosed in the report, each Servicer and the
Master Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement; and
5.....The reports disclose all significant deficiencies relating
to each Servicer's and the Master Servicer's compliance with the minimum
servicing standards based, in each case, upon the report provided by an
independent public accountant, after conducting a review in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in the Pooling and Servicing Agreement, that is
included in these reports.
In giving the certifications above, I have reasonably relied on
the information provided to me by the following unaffiliated parties: [each
Servicer, the Master Servicer, the Trustee or Trust Administrator].
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement").
______________________________
[Name]
[Title]
[Date]
EXHIBIT U
FORM OF TRUST ADMINISTRATOR CERTIFICATION
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series
2005-10
Xxxxx Fargo Bank, N.A. (the "Trust Administrator") hereby
certifies to Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"), and each Person, if any, who "controls" the Depositor within
the meaning of the Securities Act of 1933, as amended, and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely upon this certification, that:
1.....The Trust Administrator has reviewed the annual report on
Form 10-K for the fiscal year [___], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in the year covered
by that annual report, of the Depositor relating to the above-referenced
trust;
2.....Based on the Trust Administrator's knowledge, and assuming
the accuracy and completeness of the information supplied to the Trust
Administrator by the Master Servicer and each Servicer, the distribution
information in the distribution reports contained in all reports on Form 8-K
included in the year covered by the annual report on Form 10-K for the fiscal
year [___], prepared by the Trust Administrator, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact required by the Pooling and Servicing Agreement to be included therein
and necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last day of
the period covered by that annual report; and
3.....Based on the Trust Administrator's knowledge, the
distribution information required to be provided by the Trust Administrator
under the Pooling and Servicing Agreement is included in these reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement").
Xxxxx Fargo Bank, N.A.
as Trust Administrator
By:___________________________
[Name]
[Title]
[Date]
EXHIBIT V-1
FORM OF MASTER SERVICER CERTIFICATION
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series
2005-10
Xxxxx Fargo Bank, N.A. (the "Master Servicer"), certifies
pursuant to Section 10.13 (d)(i) of the Pooling and Servicing Agreement to
the Depositor, the Trust Administrator and each Person, if any, who
"controls" the Depositor or the Trust Administrator within the meaning of the
Securities Act of 1933, as amended, and their respective officers and
directors with respect to the calendar year immediately preceding the date of
this Certificate (the "Relevant Year"), as follows:
1.....For purposes of this Certificate, "Relevant Information"
means the information in the certificate provided pursuant to Section 3.16 of
the Pooling and Servicing Agreement (the "Annual Compliance Certificate") for
the Relevant Year and the information in all servicing reports required
pursuant to the Pooling and Servicing Agreement to be provided by the Master
Servicer to the Trust Administrator during the Relevant Year. Based on the
Master Servicer's knowledge, the Relevant Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein which is necessary to make the
statements made therein, in light of the circumstances under which such
statements were made, not misleading as of the last day of the Relevant Year.
2.....The Relevant Information has been provided to those Persons
entitled to receive it.
3.....Based upon the review required by the Pooling and Servicing
Agreement and except as disclosed in the Annual Compliance Certificate or the
accountants' statement provided pursuant to Section 3.17 of the Pooling and
Servicing Agreement, to the best of the Master Servicer's knowledge, the
Master Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement throughout the Relevant Year.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement").
Xxxxx Fargo Bank, N.A.
as Master Servicer
By:___________________________
[Name]
[Title]
[Date]
EXHIBIT V-2
FORM OF SERVICER CERTIFICATION
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Adjustable Rate Mortgage Trust 2005-10,
Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series
2005-10
I, [name of certifying individual], a duly elected and acting
officer of [__________________________] (the "Servicer"), certify pursuant to
Section 10.13(d)(iii) of the Pooling and Servicing Agreement to the
Depositor, the Trust Administrator and each Person, if any, who "controls"
the Depositor or the Trust Administrator within the meaning of the Securities
Act of 1933, as amended, and their respective officers and directors, with
respect to the calendar year immediately preceding the date of this
Certificate (the "Relevant Year"), as follows:
1.....For purposes of this Certificate, "Relevant Information"
means the information in the certificate provided pursuant to Section 3.16 of
the Pooling and Servicing Agreement (the "Annual Compliance Certificate") for
the Relevant Year and the information in all servicing reports required
pursuant to the Pooling and Servicing Agreement to be provided by the
Servicer to the Trust Administrator during the Relevant Year. Based on my
knowledge, the Relevant Information, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein which is necessary to make the statements made therein,
in light of the circumstances under which such statements were made, not
misleading as of the last day of the Relevant Year.
2.....The Relevant Information has been provided to those Persons
entitled to receive it.
3.....I am responsible for reviewing the activities performed by
the Servicer under the Pooling and Servicing Agreement during the Relevant
Year. Based upon the review required by the Pooling and Servicing Agreement
and except as disclosed in the Annual Compliance Certificate or the
accountants' statement provided pursuant to Section 3.17 of the Pooling and
Servicing Agreement, to the best of my knowledge, the Servicer has fulfilled
its obligations under the Pooling and Servicing Agreement throughout the
Relevant Year.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement").
[______________________]
as Servicer
By:___________________________
Name:
Title:
Date:
EXHIBIT W
FORM OF CERTIFICATION
REGARDING SUBSTITUTION OF DEFECTIVE MORTGAGE LOANS
OFFICER'S CERTIFICATE OF DLJ MORTGAGE CAPITAL, INC.
[__________], 2005
I, ____________, hereby certify that I am the duly authorized officer
of DLJ Mortgage Capital, Inc., a Delaware corporation ("DLJMC"), and further
certify that each of the Mortgage Loans substituted by DLJMC on
_______________, 20[___] were in violation of the terms of the Mortgages
related thereto.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Pooling and Servicing Agreement").
DLJ MORTGAGE CAPITAL, INC.
____________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(Provided Upon Request)
SCHEDULE IIA
Representations and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC Mortgage Capital, Inc. ("DLJ"), in its capacity as Seller,
hereby makes the representations and warranties set forth in this Schedule
IIA to the Depositor, the Trustee and the Trust Administrator, as of the
Closing Date, or if so specified herein, as of the Cut off Date or such other
date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of September 1, 2005, among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, DLJ Mortgage Capital, Inc., as a
seller, Washington Mutual Bank, as a seller and as a servicer, Select
Portfolio Servicing, Inc., as a servicer and as special servicer, U.S. Bank
National Association, as trustee, and Xxxxx Fargo Bank, N.A., as a servicer,
master servicer, back-up servicer and trust administrator (the "Agreement").
DLJMC is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation;
(i) DLJMC 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;
(ii) the execution and delivery by DLJMC of this Agreement
have been duly authorized by all necessary corporate action on the part
of DLJMC; and neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated hereby, 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 DLJMC or its properties or the certificate of incorporation
or by-laws of DLJMC, except those conflicts, breaches or defaults which
would not reasonably be expected to have a material adverse effect on
DLJMC's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(iii) the execution, delivery and performance by DLJMC 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;
(iv) this Agreement has been duly executed and delivered by
DLJMC and, assuming due authorization, execution and delivery by the
Trustee, the Trust Administrator, the Master Servicer, the Servicers,
the Special Servicer and the Depositor, constitutes a valid and binding
obligation of DLJMC 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);
and
(v) to the knowledge of DLJMC, there are no actions,
litigation, suits or proceedings pending or threatened against DLJMC
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 DLJMC if determined adversely to DLJMC would
reasonably be expected to materially and adversely affect DLJMC's
ability to perform its obligations under this Agreement; and DLJMC 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.
SCHEDULE IIB
Representations and Warranties of Seller and Servicer - Washington Mutual Bank
WMB, in its capacity as a Seller and a Servicer, hereby makes the
representations and warranties set forth in this Schedule IIB to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date,
or if so specified herein, as of the Cut off Date or such other date as may
be specified. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement dated as of
September 1, 2005, among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, DLJ Mortgage Capital, Inc., as a seller, Washington
Mutual Bank, as a seller and as a servicer, Select Portfolio Servicing, Inc.,
as a servicer and as special servicer, U.S. Bank National Association, as
trustee, and Xxxxx Fargo Bank, N.A., as a servicer, master servicer, back-up
servicer and trust administrator (the "Agreement").
WMB is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and is
qualified under the laws of each state where required by applicable law or is
otherwise exempt under applicable law from such qualification.
(i) WMB has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due
authorization and execution of the Agreement by the other parties
thereto) constitutes a valid and legally binding agreement of WMB
enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization
and similar laws, and by equitable principles affecting the
enforceability of the rights of creditors.
(ii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will
result in the breach of, or constitute a default under, any term or
provision of the organizational documents of WMB or conflict with,
result in a material breach, violation or acceleration of or constitute
a material default under, the terms of any indenture or other agreement
or instrument to which WMB is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to WMB of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over WMB.
(iii) There is no action, suit, proceeding or investigation
pending, or to WMB's knowledge threatened, against WMB before any
court, administrative agency or other tribunal (a) asserting the
invalidity of the Agreement, (b) seeking to prevent the consummation of
any of the transactions contemplated thereby or (c) which might
materially and adversely affect the performance by WMB of its
obligations under, or the validity or enforceability of, the Agreement.
(iv) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under
state or federal law prior to the execution, delivery and performance
by WMB of the Agreement or the consummation of the transactions
contemplated by the Agreement.
(v) With respect to each WMB Mortgage Loan, WMB has furnished
information regarding its borrower credit files to credit reporting
agencies on a monthly basis in compliance with the provisions of the
Fair Credit Reporting Act and its implementing regulations applicable
to WMB.
SCHEDULE IIC
Representations and Warranties of Master Servicer - Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo"), in its capacity as Master
Servicer, hereby makes the representations and warranties set forth in this
Schedule IIB to the Depositor, the Trust Administrator and the Trustee, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified.
(i) Xxxxx Fargo is a national banking association duly formed,
validly existing and in good standing and is qualified under the laws
of each state where required by applicable law or is otherwise exempt
under applicable law from such qualification.
(ii) Xxxxx Fargo has all requisite organizational power,
authority and capacity to enter into the Agreement and to perform the
obligations required of it thereunder. The Agreement (assuming the due
authorization and execution of the Agreement by the other parties
thereto) constitutes a valid and legally binding agreement of Xxxxx
Fargo enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will
result in the breach of, or constitute a default under, any term or
provision of the organizational documents of Xxxxx Fargo or conflict
with, result in a material breach, violation or acceleration of or
constitute a material default under, the terms of any indenture or
other agreement or instrument to which Xxxxx Fargo is a party or by
which it is bound, or any statute, order, judgment, or regulation
applicable to Xxxxx Fargo of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Xxxxx Fargo.
(iv) There is no action, suit, proceeding or investigation
pending, or to Xxxxx Fargo's knowledge threatened, against Xxxxx Fargo
before any court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement, (b) seeking to prevent the
consummation of any of the transactions contemplated thereby or (c)
which might materially and adversely affect the performance by Xxxxx
Fargo of its obligations under, or the validity or enforceability of,
the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under
state or federal law prior to the execution, delivery and performance
by Xxxxx Fargo of the Agreement or the consummation of the transactions
contemplated by the Agreement.
SCHEDULE IID
Representations and Warranties of Servicer - Select Portfolio Servicing, Inc.
Select Portfolio Servicing, Inc. ("SPS"), in its capacities as
Servicer and Special Servicer, hereby makes the representations and
warranties set forth in this Schedule IID to the Depositor, the Trustee, the
Trust Administrator and the Master Servicer, as of the Closing Date, or if so
specified herein, as of the Cut-off Date or such other date as may be
specified.
(i) SPS is a corporation duly formed, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
and is qualified under the laws of each state where required by
applicable law or is otherwise exempt under applicable law from such
qualification.
(ii) SPS has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due
authorization and execution of the Agreement by the other parties
thereto) constitutes a valid and legally binding agreement of SPS
enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization
and similar laws, and by equitable principles affecting the
enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will
result in the breach of, or constitute a default under, any term or
provision of the organizational documents of SPS or conflict with,
result in a material breach, violation or acceleration of or constitute
a material default under, the terms of any indenture or other agreement
or instrument to which SPS is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to SPS of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over SPS.
(iv) There is no action, suit, proceeding or investigation
pending, or to SPS's knowledge threatened, against SPS before any
court, administrative agency or other tribunal (a) asserting the
invalidity of the Agreement, (b) seeking to prevent the consummation of
any of the transactions contemplated thereby or (c) which might
reasonably be expected to materially and adversely affect the
performance by SPS of its obligations under, or the validity or
enforceability of, the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under
state or federal law prior to the execution, delivery and performance
by SPS of the Agreement or the consummation of the transactions
contemplated by the Agreement.
(vi) With respect to each SPS Serviced Mortgage Loan and to the
extent SPS has serviced any of the SPS Serviced Mortgage Loans prior to
the date of the Agreement, SPS has fully furnished, in accordance with
the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on
its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company, on a monthly basis.
SCHEDULE IIE
Representations and Warranties of Servicer - Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo"), in its capacity as
Servicer, hereby makes the representations and warranties set forth in this
Schedule IIE to the Depositor, the Trustee and the Trust Administrator, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified.
(i) Xxxxx Fargo is a national banking association duly
organized and in good standing under the laws of the United States and
is qualified under the laws of each state where required by applicable
law or is otherwise exempt under applicable law from such qualification.
(ii) Xxxxx Fargo has all requisite corporate power,
authority and capacity to enter into the Agreement and to perform the
obligations required of it thereunder. The Agreement (assuming the due
authorization and execution of the Agreement by the other parties
thereto) constitutes a valid and legally binding agreement of Xxxxx
Fargo enforceable in accordance with its terms, except as such
enforceability may be limited by liquidation, conservatorship and
similar laws administered by the FDIC affecting the contract
obligations of insured banks, and by equitable principles affecting the
enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Agreement,
the consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will
result in the breach of, or constitute a default under, any term or
provision of the organizational documents of Xxxxx Fargo or conflict
with, result in a material breach, violation or acceleration of or
constitute a material default under, the terms of any indenture or
other agreement or instrument to which Xxxxx Fargo is a party or by
which it is bound, or any statute, order, judgment, or regulation
applicable to Xxxxx Fargo of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Xxxxx Fargo.
(iv) There is no action, suit, proceeding or investigation
pending, or to Xxxxx Fargo's knowledge threatened, against Xxxxx Fargo
before any court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement, (b) seeking to prevent the
consummation of any of the transactions contemplated thereby or (c)
which might materially and adversely affect the performance by Xxxxx
Fargo of its obligations under, or the validity or enforceability of,
the Agreement.
(v) No consent, approval, authorization or order of any
court, regulatory body or governmental agency or court is required,
under state or federal law prior to the execution, delivery and
performance by Xxxxx Fargo of the Agreement or the consummation of the
transactions contemplated by the Agreement.
SCHEDULE IIIA
Representations and Warranties of DLJMC - Mortgage Loans
DLJMC, in its capacity as Seller, hereby makes the
representations and warranties set forth in this Schedule IIIA to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date,
or if so specified herein, as of the Cut off Date or such other date as may
be specified, with respect to the Mortgage Loans identified on Schedule I
hereto, except as specified herein.
(i) The information set forth in Schedule I, with respect to
the Mortgage Loans, is complete, true and correct in all material
respects;
(ii) [Reserved];
(iii) No Mortgage Loan will be 30 or more days delinquent as of
the Cut-off Date. There are no material defaults under the terms of
any Mortgage Loan;
(iv) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or escrow funds
have been established in an amount sufficient to pay for every such
escrowed item which remains unpaid and which has been assessed but is
not yet due and payable;
(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 which have been recorded or sent for recording to
the extent any such recordation is required by law, or, necessary to
protect the interest of the Depositor. No other instrument of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in
connection with an assumption agreement and which assumption agreement
is part of the Mortgage File and the terms of which are reflected in
Schedule IA; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Mortgage
Guaranty Insurance Policy and title insurance policy, to the extent
required by the related policies;
(vi) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including,
without limitation, the defense of usury, nor will the operation of any
of the terms of the Mortgage Note or the Mortgage, or the exercise of
any right thereunder, render the Mortgage Note or Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(vii) All buildings or other customarily insured improvements
upon the Mortgaged Property are insured by an insurer acceptable under
the FNMA Guides, against loss by fire, hazards of extended coverage and
such other hazards as are provided for in the FNMA Guides or by FHLMC,
as well as all additional requirements set forth in Section 4.10 of
this Agreement. All such standard hazard policies are in full force and
effect and on the date of origination contained a standard mortgagee
clause naming DLJMC and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of
1973, as amended, the Mortgage Loan is covered by a flood insurance
policy meeting the requirements of the current guidelines of the
Federal Insurance Administration which policy conforms to FNMA and
FHLMC requirements, as well as all additional requirements set forth in
Section 4.10 of this Agreement. Such policy was issued by an insurer
acceptable under FNMA or FHLMC guidelines. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes
the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor;
(viii) Each Mortgage Loan at the time it was made complied
in all material respects with all applicable local, state and federal
laws, including, without limitation, usury, equal credit opportunity,
disclosure, recording and all applicable predatory and abusive lending
laws;
(ix) The related Mortgage is a valid, subsisting, enforceable
and perfected first lien on the Mortgaged Property, including for
Mortgage Loans that are not Cooperative Loans, all buildings on the
Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any
time with respect to the foregoing securing the Mortgage Note's
original principal balance. The Mortgage and the Mortgage Note do not
contain any evidence of any security interest or other interest or
right thereto. Such lien is free and clear of all adverse claims,
liens and encumbrances having priority over the first lien, as
applicable, of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due
and payable, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording which are acceptable to mortgage lending institutions
generally and either (A) which are referred to or otherwise considered
in the appraisal made for the originator of the Mortgage Loan, or (B)
which do not adversely affect the appraised value of the Mortgaged
Property as set forth in such appraisal, and (3) 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 the
Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected first lien and first priority security interest on the
property described therein, and the Seller has the full right to sell
and assign the same to the Depositor;
(x) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the
maker thereof, enforceable in all respects in accordance with its terms
subject to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application affecting the rights of creditors and by
general equitable principles;
(xi) DLJMC or its affiliate is the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by the
Mortgage Note. Immediately prior to the transfer and assignment to the
Depositor on the Closing Date, the Mortgage Loan, including the
Mortgage Note and the Mortgage, were not subject to an assignment or
pledge, and DLJMC had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell the Mortgage Loan
to the Depositor free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest and has the full right and
authority subject to no interest or participation of, or agreement
with, any other party, to sell and assign the Mortgage Loan and
following the sale of the Mortgage Loan, the Depositor will own such
Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest;
(xii) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to or equal
to the lien of the related Mortgage;
(xiii) All improvements subject to the Mortgage which were
considered in determining the appraised value of the Mortgaged Property
lie wholly within the boundaries and building restriction lines of the
Mortgaged Property (and wholly within the project with respect to a
condominium unit) except for de minimis encroachments permitted by the
FNMA Guide and which have been noted on the appraisal or the title
policy affirmatively insures against loss or damage by reason of any
violation, variation or encroachment adverse circumstances which is
either disclosed or would have been disclosed by an accurate survey,
and no improvements on adjoining properties encroach upon the Mortgaged
Property except those which are insured against by the title insurance
policy referred to in clause (v) above or are acceptable under FNMA or
FHLMC guidelines and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances;
(xiv) The Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At origination of the Mortgage Loan there was, and there currently is,
no proceeding pending for the total or partial condemnation of the
Mortgaged Property;
(xv) Each Mortgage Loan has been serviced in all material
respects in compliance with accepted servicing practices;
(xvi) With respect to each Cooperative Loan, the related Mortgage
is a valid, enforceable and subsisting first security interest on the
related Cooperative Shares securing the related Mortgage Note, subject
only to (a) liens of the Cooperative Property for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative
Property's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other
matters to which like collateral is commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Security Agreement. There are no liens against or
security interest in the Cooperative Shares relating to each
Cooperative Loan (except for unpaid maintenance, assessments and other
amounts owed to the related Cooperative Property which individually or
in the aggregate will not have a material adverse effect on such
Cooperative Loan), which have priority over DLJMC's security interest
in such Cooperative Shares;
(xvii) The Mortgage Loan complies with all terms, conditions
and requirements of the originator's underwriting standards in effect
at the time of origination of such Mortgage Loan;
(xviii) 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);
(xix) With respect to each Mortgage Loan sold by the Seller, to
the knowledge of DLJMC, (i) no borrower obtained a prepaid
single-premium credit life, credit disability, credit unemployment or
credit property insurance policy in connection with the origination of
such Mortgage Loan, (ii) the related Servicer of each such Mortgage
Loan has fully furnished, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information
on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company, on a monthly basis; and (iii) no Mortgage
Loan will impose a Prepayment Premium for a term in excess of five
years;
(xx) DLJMC has delivered or caused to be delivered to the
Trustee or the Custodian on behalf of the Trustee the original Mortgage
bearing evidence that such instruments have been recorded in the
appropriate jurisdiction where the Mortgaged Property is located as
determined by DLJMC (or in lieu of the original of the Mortgage or the
assignment thereof, a duplicate or conformed copy of the Mortgage or
the instrument of assignment, if any, together with a certificate of
receipt from DLJMC or the settlement agent who handled the closing of
the Mortgage Loan, certifying that such copy or copies represent true
and correct copies represent true and correct copy(ies) of the
originals) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording
office of the jurisdiction where the Mortgaged Property is located or a
certification or receipt of the recording authority evidencing the same;
(xxi) The Mortgage File contains each of the documents specified
in Section 2.01(b) of this Agreement;
(xxii) No Mortgage Loan sold by the Seller secured by a
Mortgaged Property located in the State of Georgia was originated on or
after October 1, 2002 and before March 7, 2003 and no Mortgage Loan
secured by Mortgaged Property located in the State of Georgia that was
originated on or after March 7, 2003 is a "high cost home loan" as
defined in the Georgia Fair Lending Act (HB 1361), as amended;
(xxiii) With respect to each Cooperative Loan, the
Cooperative Shares that is pledged as security for the Cooperative Loan
is held by a person as a tenant-stockholder (as defined in Section 216
of the Code) in a cooperative housing corporation (as defined in
Section 216 of the Code);
(xxiv) None of the Mortgage Loans sold by the Seller are
classified as (a) a "high cost mortgage" loan under the Home Ownership
and Equity Protection Act of 1994 or (b) a "high cost home," "covered,"
"high cost," "high risk home" or "predatory" loan under any other
applicable state, federal or local law;
(xxv) With respect to each Mortgage Loan, (a) the Mortgage Loan
was originated by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution
which is supervised and examined by a federal or state authority or
(b) at the time the Mortgage Loan was originated, the originator was a
mortgagee duly licensed as required by the State within which the
Mortgage Loan was originated, and was subject to supervision and
examination conducted by the applicable State authority of such State;
(xxvi) With respect to each Mortgage Loan that has a
Prepayment Premium feature, each such Prepayment Premium is enforceable
and, at the time such Mortgage Loan was originated, each Prepayment
Premium complied with applicable federal, state and local law, subject
to federal preemption where applicable;
(xxvii) The related Servicer of each Mortgage Loan sold by
the Seller will fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company, on a monthly basis;
(xxviii) [Reserved];
(xxix) With respect to the Group 4 Mortgage Loans, the
original principal balance of each such Mortgage Loan is within Xxxxxxx
Mac's dollar amount limits for conforming one- to four-family Mortgage
Loans;
(xxx) Each Mortgage Loan that is secured by residential real
property (or a leasehold interest therein) has a loan-to-value ratio of
100% or less by Cut-Off Date Principal Balance;
(xxxi) No Mortgage Loan sold by the Seller is a "High Cost
Loan" or "Covered Loan," as applicable, as such terms are defined in
the then current Standard & Poor's LEVELS® Glossary which is now
Version 5.6c Revised, Appendix E, in effect as of the Closing Date; and
(xxxii) With respect to any Mortgage Loan originated on or
after August 1, 2004, neither the related Mortgage nor the related
Mortgage Note requires the related Mortgagor to submit to arbitration
to resolve any dispute arising out of or relating in any way to the
Mortgage Loan.
SCHEDULE IIIB
Representations and Warranties of WMB - WMB Mortgage Loans
WMB, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIIB to the Depositor, the Trustee
and the Trust Administrator, as of the Closing Date, or if so specified
herein, as of the Cut off Date or such other date as may be specified, with
respect to the WMB Mortgage Loans identified on Schedule I hereto, except as
otherwise specified herein. Each reference to a "Mortgage Loan" in this
Schedule IIIB shall mean a WMB Mortgage Loan, and each reference to a
"Mortgaged Property" shall mean a Mortgaged Property related to a WMB
Mortgage Loan. Each reference to the "Seller" in this Schedule IIIB shall
mean WMB, in its capacity as seller of the WMB Mortgage Loans.
(i) The information set forth in the Mortgage Loan Schedule
with respect to the WMB Mortgage Loans was true and correct in all
material respects at the date or dates respecting which such
information is furnished;
(ii) Each Mortgage is a valid and enforceable (subject to clause
(xvi) below) first lien on an unencumbered estate in fee simple or
leasehold estate in the related Mortgaged Property subject only to (a)
liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal obtained in connection with the origination of the
Mortgage Loan; (c) exceptions set forth in the title insurance policy
relating to such Mortgage, such exceptions being acceptable to mortgage
lending institutions generally; and (d) 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 the Mortgage;
(iii) WMB had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any encumbrance or lien, and
immediately upon the transfer and assignment herein contemplated, the
Trustee shall have good title to, and will be the sole legal owner of,
each Mortgage Loan, free and clear of any encumbrance or lien (other
than any lien under the Agreement);
(iv) As of the day prior to the Cut-off Date, all payments due
on each Mortgage Loan had been made and no Mortgage Loan had been
delinquent (i.e., was more than 30 days past due) more than once in the
preceding 12 months and any such delinquency lasted for no more than 30
days;
(v) There is no late assessment for delinquent taxes
outstanding against any Mortgaged Property;
(vi) There is no offset, defense or counterclaim to any Mortgage
Note, including the obligation of the Mortgagor to pay the unpaid
principal or interest on such Mortgage Note;
(vii) Each Mortgaged Property is free of damage and in good
repair, ordinary wear and tear excepted;
(viii) Each Mortgage Loan at the time it was made complied
in all material respects with all applicable local, state and federal
laws, including, without limitation, usury, equal credit opportunity,
disclosure, recording and all applicable predatory and abusive lending
laws;
(ix) Each Mortgage Loan was originated by a savings association,
savings bank, credit union, insurance company, or similar institution
which is supervised and examined by a federal or state authority or by
a mortgagee approved by the FHA and will be serviced by an institution
which meets the servicer eligibility requirements established by WMB;
(x) Each Mortgage Loan (other than a Cooperative Loan) is
covered by an ALTA form or CLTA form of mortgagee title insurance
policy or other form of policy of insurance which, as of the
origination date of such Mortgage Loan, was acceptable to FNMA or
FHLMC, and has been issued by, and is the valid and binding obligation
of, a title insurer which, as of the origination date of such Mortgage
Loan, was acceptable to FNMA or FHLMC and qualified to do business in
the state in which the related Mortgaged Property is located. Such
policy insures the originator of the Mortgage Loan, its successors and
assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan subject to the exceptions set
forth in such policy. Such policy is in full force and effect and will
be in full force and effect and inure to the benefit of the
Certificateholders upon the consummation of the transactions
contemplated by the Agreement and no claims have been made under such
policy, and no prior holder of the related Mortgage, including WMB, has
done, by act or omission, anything which would impair the coverage of
such policy;
(xi) Each Mortgage Loan which had a Loan-to-Value Ratio as of
the Closing Date in excess of 80% was covered by a Mortgage Guaranty
Insurance Policy or an FHA insurance policy or a VA guaranty, and such
policy or guaranty is valid and remains in full force and effect;
(xii) All policies of insurance required by the Agreement (except
for the Mortgage Loans specified in clause (xi) above as not having
Primary Insurance Policies) have been validly issued and remain in full
force and effect, including such policies covering WMB;
(xiii) Each insurer issuing a Mortgage Guaranty Insurance
Policy is a Qualified Insurer;
(xiv) Each Mortgage was documented by appropriate FNMA/FHLMC
mortgage instruments in effect at the time of origination, or other
instruments approved by WMB;
(xv) The Mortgaged Property securing each Mortgage that is not a
Cooperative Loan is improved with a one- to four-family dwelling unit,
including units in a duplex, condominium project, townhouse, a planned
unit development or a de minimis planned unit development;
(xvi) Each Mortgage and Mortgage Note is the legal, valid and
binding obligation of the maker thereof and is enforceable in
accordance with its terms, except only as such enforcement may be
limited by laws affecting the enforcement of creditors' rights
generally and principles of equity;
(xvii) As of the date of origination, as to Mortgaged
Properties which are units in condominiums or planned unit
developments, all of such units met FNMA or FHLMC requirements, are
located in a condominium or planned unit development projects which
have received FNMA or FHLMC approval, or are approvable by FNMA or
FHLMC;
(xviii) Prior to origination or refinancing, an appraisal of
each Mortgaged Property was made by an appraiser on a form satisfactory
to FNMA or FHLMC;
(xix) The Mortgage Loans have been underwritten substantially in
accordance with the applicable underwriting standards of either WMB or
the originator of such Mortgage Loans, as applicable;
(xx) All of the Mortgage Loans have "due-on-sale" clauses; by
the terms of the Mortgage Notes, however, the due on sale provisions
may not be exercised at the time of a transfer if prohibited by law;
(xxi) With respect to any Mortgage Loan as to which an affidavit
has been delivered to the Trustee certifying that the original Mortgage
Note was permanently lost or destroyed and has not been replaced, if
such Mortgage Loan is subsequently in default, the enforcement of such
Mortgage Loan or of the related Mortgage by or on behalf of the Trustee
will not be materially adversely affected by the absence of the
original Mortgage Note;
(xxii) 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);
(xxiii) With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable
and, at the time such Mortgage Loan was originated, each Prepayment
Penalty complied with applicable federal, state and local law, subject
to federal preemption where applicable; and
(xxiv) Each Mortgage Loan that is secured by residential
real property (or a leasehold interest therein) has a loan-to-value
ratio of 100% or less by Cut-Off Date Principal Balance.
Appendix A
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 Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group 4,
determine its Weighted Average Adjusted Net Mortgage Rate 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 Y Certificates 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 Y and Z Regular Interests and the Weighted Average Adjusted
Net Mortgage Rates and the Groups named in the Generic Solution and their
related REMIC I Y and Z Regular Interests as follows:
A. Determine which Group has the lowest Group Interest Rate. That Group
will be identified with Group AA and the REMIC I Y and Z Regular Interests
related to that Group will be respectively identified with the REMIC I Y-aa
and Z-aa Regular Interests. 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 of 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 Y and Z Regular
Interests related to that Group will be respectively identified with the
REMIC I Y-bb and Z-bb Regular Interests. 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 of 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 Y and Z Regular
Interests related to that Group will be respectively identified with the
REMIC I Y-cc and Z-cc Regular Interests. 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 of 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 Y and REMIC I Z
Regular Interests related to that Group will be respectively identified with
the REMIC I Y-dd and REMIC I Z-dd Regular Interests. 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 of this definition.
Second, apply the Generic Solution set forth below to determine the REMIC I 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 Uncertificated Principal
Balances of the REMIC I YAA, YBB, YCC and YDD 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:
J% = the Weighted Average Adjusted Net Mortgage Rate for Group AA for
interest to be distributed on the next succeeding Distribution Date.
K% = the Weighted Average Adjusted Net Mortgage Rate for Group BB for
interest to be distributed on the next succeeding Distribution Date.
L% = the Weighted Average Adjusted Net Mortgage Rate for Group CC for
interest to be distributed on the next succeeding Distribution Date.
M% = the Weighted Average Adjusted Net Mortgage Rate for Group DD for
interest to be distributed on the next succeeding Distribution Date.
For purposes of the succeeding definitions and formulas, it is required that
J%<=K%<=L%<=M%.
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 (other than any Class P-L or
Class X-L Regular Interests or portions thereof related to such Groups)
=
(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 (other than any Class X-L or
Class P-L Regular Interests or portions thereof related to such Groups)
=
(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 (other than any Class P-L or Class X-L
Regular Interests or portions thereof related to such Groups)
=
(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 (other than any Class X-L or Class P-L
Regular Interests or portions thereof related to such Groups)
=
(L%(Pll - ΔPll) + M%(Pmm - ΔPmm))/(Pll - ΔPll + Pmm - ΔPmm)
r1 = the weighted average of the Class Y-aa, Class Y-bb and Class Y-cc
Remittance Rates
= (J% Yjj + K% Ykk + L% Yll)/(Yjj + Ykk + Yll)
r2 = the weighted average of the Class Y-bb, Class Y-cc and Class Y-dd
Remittance Rates
= (K% Ykk + L% Yll + M% Ymm)/(Ykk + Yll + Ymm)
r3 = the weighted average of the Class Y-aa and Class Y-bb Remittance Rates
= (J% Yjj + K% Ykk)/(Yjj + Ykk)
r4 = the weighted average of the Class Y-cc and Class Y-dd Remittance Rates
= (L% Yll + M% Ymm)/(Yll + Ymm)
Yjj = the principal balance of the Class Y-aa Regular Interests after
distributions on the prior Distribution Date.
Ykk = the principal balance of the Class Y-bb Regular Interests after
distributions on the prior Distribution Date.
Yll = the principal balance of the Class Y-cc Regular Interests after
distributions on the prior Distribution Date.
Ymm = the principal balance of the Class Y-dd Regular Interests after
distributions on the prior Distribution Date.
ΔYjj = the Class Y-aa Principal Reduction Amount.
ΔYkk = the Class Y-bb Principal Reduction Amount.
ΔYll = the Class Y-cc Principal Reduction Amount.
ΔYmm = the Class Y-dd Principal Reduction Amount.
Pjj = the aggregate principal balance of the Class Y-aa and Class Z-aa
Regular Interests 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 of Component I
of the Class AR-L Certificate derived from Group AA Loans.
Pkk = the aggregate principal balance of the Class Y-bb and Class Z-bb
Regular Interests 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 of Component I
of the Class AR-L Certificate derived from Group BB Loans.
Pll = the aggregate principal balance of the Class Y-cc and Class Z-cc
Regular Interests 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 of Component I
of the Class AR-L Certificate derived from Group CC Loans.
Pmm = the aggregate principal balance of the Class Y-dd and Class Z-dd
Regular Interests 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 of Component I
of the Class AR-L Certificate derived from Group DD Loans.
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
(d)(i) or (d)(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 AR-L Certificate, which is equal to the
aggregate of the Class Y-aa and Class 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 (d)(i) or
(d)(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 AR-L Certificate, which is equal to the aggregate of the
Class Y-bb and Class 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
(d)(i) or (d)(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 AR-L Certificate, which is equal to the
aggregate of the Class Y-cc and Class 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
(d)(i) or (d)(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 AR-L Certificate, which is equal to the
aggregate of the Class Y-dd and Class 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.
xX0, xXxx, 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 Class Y and
Class 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 Class
Y-aa, Class Y-bb, Class Y-cc, Class Y-dd, Class Z-aa, Class Z-bb,
Class Z-cc and Class Z-dd Regular Interests is greater than or equal to
zero for such Distribution Date;
2. Making the Class Y-aa Principal Balance less than or equal to 0.0005 of
the sum of the Class Y-aa and Class Z-aa Principal Balances, the Class
Y-bb Principal Balance less than or equal to 0.0005 of the sum of the
Class Y-bb and Class Z-bb Principal Balances, the Class Y-bb Principal
Balance less than or equal to 0.0005 of the sum of the Class Y-cc and
Class Z-cc Principal Balances and the Class Y-dd Principal Balance less
than or equal to 0.0005 of the sum of the Class Y-dd and Class 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 Class Z-dd Principal Balance and (b)
the fraction whose numerator is Y5 and whose denominator is the sum of
Y5, the Class Z-aa Principal Balance, the Class Z-bb Principal Balance
and the Class 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 Class
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 Class 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 Class 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 Class P-M Regular Interest (if any), (ii) to the related Class X-M
Regular Interests and (iii) in respect of interest on the related Class Y and
Class 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 Class 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 Class Y and
Class 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 Class
Y-aa, Class Y-bb, Class Y-cc, Class Y-dd, Class Z-aa, Class Z-bb, Class
Z-cc and Class Z-dd Regular Interests is greater than or equal to zero
for such Distribution Date;
2. Making the Class Y-aa Principal Balance less than or equal to 0.0005 of
the sum of the Class Y-aa and Class Z-aa Principal Balances, the Class
Y-bb Principal Balance less than or equal to 0.0005 of the sum of the
Class Y-bb and Class Z-bb Principal Balances, the Class Y-bb Principal
Balance less than or equal to 0.0005 of the sum of the Class Y-cc and
Class Z-cc Principal Balances and the Class Y-dd Principal Balance less
than or equal to 0.0005 of the sum of the Class Y-dd and Class 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 Class Z-aa Principal Balance and (b)
the fraction whose numerator is Y6 and whose denominator is the sum of
Y6, the Class Z-bb Principal Balance, the Class Z-cc Principal Balance
and the Class 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 Class
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 Class 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 Class 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
Class P-M Regular Interest (if any), (ii) to the related Class X-M
Regular Interests and (iii) in respect of interest on the related Class
Y and Class 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
Class 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 Class Y and
Class 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 Class
Y-aa, Class Y-bb, Class Y-cc, Class Y-dd, Class Z-aa, Class Z-bb, Class
Z-cc and Class Z-dd Regular Interests is greater than or equal to zero
for such Distribution Date;
2. Making the Class Y-aa Principal Balance less than or equal to 0.0005 of
the sum of the Class Y-aa and Class Z-aa Principal Balances, the Class
Y-bb Principal Balance less than or equal to 0.0005 of the sum of the
Class Y-bb and Class Z-bb Principal Balances, the Class Y-bb Principal
Balance less than or equal to 0.0005 of the sum of the Class Y-cc and
Class Z-cc Principal Balances and the Class Y-dd Principal Balance less
than or equal to 0.0005 of the sum of the Class Y-dd and Class 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 Class Z-aa Principal Balance and the
Class Z-bb Principal Balance and (b) the fraction whose numerator is Y8
and whose denominator is the sum of Y8, the Class Z-cc Principal
Balance and the Class 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 Class
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 Class 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 Class 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
Class P-M Regular Interest (if any), (ii) to the related Class X-M
Regular Interests and (iii) in respect of interest on the related Class
Y and Class 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
Class 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.
